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                                                                                             20 ri APR 29           PM 8.: 145




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGT

                                               DIVISION II

PETER and RACHEL ATKINSON, husband                                            No. 44326 -1 - II
and wife, and the marital community
composed thereof,


                                  Appellants,


         v.




LES SCHWAB TIRE CENTERS OF                                              UNPUBLISHED OPINION
WASHINGTON, INC., a Washington.
corporation,



                                  Respondent,


CIGNA HEALTHCARE, INC., a foreign
corporation,



                                  Defendant.


         JOHANSON, J. —          Peter Atkinson         sued his employer, Les Schwab Tire Centers of


Washington, Inc. ( Les Schwab),         for disability discrimination after the company terminated his

employment.        Atkinson   appeals   the trial   court' s grant of   summary dismissal   of    his   claims.      He


argues that he produced evidence sufficient to establish prima facie discrimination claims for ( 1)

disparate treatment, ( 2) hostile       work   environment, (    3)   unlawful retaliation, and ( 4) failure to


provide reasonable accommodation. He further argues that the trial court abused its discretion in


denying his motion, to impose sanctions and that the trial court erred in striking certain


1
    Peter and Rachael Atkinson brought suit against Les Schwab as a marital community; we use
    Atkinson" toidentify Peter Atkinson.
No. 44326 -1 - II



declarations.     Viewing the record in a light most favorable to. Atkinson as the nonmoving party,

we hold that. Atkinson failed to carry the necessary burden for each of his claims and, thus, we

affirm the trial court' s summary judgment order in favor of Les Schwab.

                                                       FACTS

                                                                                                                   2
        Atkinson has       suffered   from   complex    hereditary    migraine   headaches    since   childhood.




These migraine headaches cause pain, nausea, fatigue, and cognitive functioning difficulty.

Shortly after his high school graduation in 1996, Atkinson accepted a position with Les Schwab

in the " sales and service" department located in Longview.


        In 2003, Rory Cox, store manager of Les Schwab' s Chehalis location, hired Atkinson to
                                                                                                  Rory3

serve as    his   second assistant manager.     During his      interview, Atkinson informed              that he


experienced chronic migraines. Atkinson' s promotion to second assistant manager meant that he


had additional responsibilities requiring greater flexibility and longer hours, typically 70 to 80 a

week.     Atkinson claimed that the additional hours contributed to the frequency and severity of

his migraines.


          In April 2006, Rory promoted Atkinson to first assistant manager of the Chehalis

location.    Accepting the role of first assistant manager meant that Atkinson' s schedule became

more demanding because he had to perform a central role in the day -to -day operations of the

branch.     According to Rory, Atkinson' s decrease in performance and lack of motivation became

increasingly evident as his work load grew.


2"
     Complex      hereditary   migraine   headaches"   and "   intractable   migraine   headaches" appear to be

used interchangeably. The record does not clearly indicate which, if either, is an actual diagnosis
or simply medical terminology used to describe migraines that do not respond effectively to
treatment.



3 The first name of Rory Cox is used for clarity and to distinguish him from Doug Cox.
                                                         2
No. 44326 -1 - II



         Atkinson believed that he could do his job as first assistant manager without concern for

his   migraine symptoms         approximately 80 to 90               percent of        the time.     The remaining time, when

he felt that his condition was too much to bear, Atkinson would either miss work, require time


sitting in the break       room, or, on rare occasions,              leave for the           remainder of    the    day.     Other times


                                        Atkinson                                 working, but         would        do   so   at a "   lesser
during   migraine       symptoms,                      would     continue




capacity" because of his discomfort.

         Shortly after Atkinson was promoted to first assistant manager, his persistent migraines

became the focal         point of a conversation          between Atkinson,                  Rory,   and   Mike Palin. 4        Atkinson

                         told Atkinson that "[ he]                       to   get [   his]   migraines     taken   care of or ...      look
claimed   that    Rory                                     need[ s]




for   work elsewhere."         3 Clerk'      s   Papers ( CP)   at   446.     This exchange prompted Atkinson to draft

                                                    Britton5

an e -mail   to   Ray   Compton        and   John               titled " Career Advice."             1 CP at 134. In the body of

the   e -mail,    Atkinson     stated   that "[     he has] now been advised to explore other career options,


whether something different in the company or different altogether, if [his] migraine condition

doesn' t improve."         1 CP at 134.


          The following days Atkinson received a call from Britton assuring him -hat his medical
                                                                                t
condition     would      not   affect    his mobility      within         the company.            Britton advised Atkinson to


continue     to   move     forward in his capacity              as   assistant manager.              The e -mail was apparently

forwarded to        Doug       Cox,     one of the zone managers for Les Schwab, who told Rory that

Atkinson' s migraines " were a medical issue [ and] they were not to be brought up in the context



4 Palin became the new second assistant manager when Atkinson was promoted from that role in
 2006.

 5
     Compton      was   the district   manager at       the time     of   the 2006       e -mail.    The record is not clear as to
 what role Britton occupied for Les Schwab.


                                                                     3
No. 44326 -1 - II



of   the job."   3 CP     at   525.    Atkinson believed the e -mail began the souring of his relationship with

Rory    and    that "[   Rory] wanted to get back at [ Atkinson] for that" because Atkinson " went, in a

sense, above [     Rory' s]     head to       people   in [ the]   main office."      1 CP at 127.


          In late 2007, Atkinson                 applied      to    the "   manager' s      list," which allowed him to be


considered for a store manager position by appearing and interviewing in front of a management

review    board.     1 CP       at   87.     Desiring the endorsement of a current manager before applying for

the list, Atkinson sought and obtained the support of Rory, among others.

          In   January     2008, Atkinson interviewed before the                    management review panel.              Following

that interview, Atkinson was not added to the manager' s list. Shortly thereafter, two members of

the review board, Gary Wanderschied and George Saddler, met with Atkinson and Rory to

discuss    portions of         Atkinson' s interview.              Specifically, they discussed negative feedback from

the peer review portion, the need for increased physical output and improved communication


from Atkinson, in addition to the fact that his crew members accused him of disappearing from

time to time      or "   hiding." 2 CP at 199.

          Over the course of the next year, Atkinson received a series of poor performance reviews.


In December 2008, Atkinson had a meeting with Rory during which Rory conveyed certain

performance concerns                 along   with   those expressed         by   Atkinson' s   crew personnel.       But Atkinson


believed that the difficulties he experienced towards the end of his employment with Les Schwab

emerged as a result of his 2006 e -mail and the subsequent deterioration of his relationship with

Rory.

          Atkinson maintained that Rory often undermined his authority to other managers and

would " work         things in         a   way that     got    the    crew    mad    at [   him]."   1   CP   at   128.    Atkinson


 complained . that        Rory        would     tell   other   employees          that Atkinson      was "    hiding   out"   in the


                                                                       4
No. 44326 -1 - II



bathroom     and   that he "    didn' t   want   to be ...    part of the work" when he was actually vomiting

from illness.      3 CP   at   490, 493.     Atkinson stated that a former co- worker mentioned that Rory

 just had it   out    for [ Atkinson]."       3 CP    at   493.    Atkinson also complained that Palin and other

                                                                                                      6
members of      the   crew made      insulting     comments       that belittled   his   condition.       Atkinson claimed


that his work environment became uncomfortable because of the apparent animosity the other

managers developed toward his condition.


         In January 2009, Rory e- mailed a list of concerns regarding Atkinson' s performance to

Greg    L' Hommedieu,          one of     Les Schwab'      s area managers.        L' Hommedieu and Rory met with

Atkinson following the e -mail exchange to discuss where his performance as assistant manager

was    lacking. L' Hommedieu reportedly warned Atkinson that failure to improve performance

promptly     would result       in his    removal    as assistant manager.         In March 2009, when Atkinson' s


performance        had   not   improved satisfactorily, Atkinson             was "   removed from his position" 7 as

assistant manager. 2 CP at 192.


         Following his removal as assistant manager, Atkinson applied for and began to receive

disability   benefits through the Social           Security Administration ( SSA). Atkinson also met with Dr.

Elena Robinson after his termination. Dr. Robinson concluded that Atkinson was unable to work


in any capacity, including light duty, and that Atkinson could not perform the essential functions

of his job.




6
    Atkinson    stated    that Palin disparaged him               by   referring to his    migraines      as "   another little
headache."      1 CP at 97.


 7 This process involves removal from a managerial role but does not fully terminate employment
until   30 days    elapse.
No. 44326 -1 - II



         Atkinson contended that he could have been more effective in his role as first assistant


manager      had Les Schwab        allowed   him   certain accommodations.        In Atkinson' s view, he would


have been able to continue working as first assistant manager if his hours had been reduced, if

consistent, uninterrupted lunches were scheduled, and if he were provided the flexibility to take
                                                                        8
breaks   whenever     he   needed reprieve     from his    migraines.       But according to Rory, the Chehalis

store' s fast pace and high sales volume meant that the management team' s presence was


essential and that they were unable to enjoy the luxury of regular, uninterrupted breaks and short

hours.


         Atkinson filed a complaint against Les Schwab under the Washington Law Against

                               9
Discrimination ( WLAD)             for disparate treatment, failure to provide reasonable accommodation,


and unlawful retaliation.          Les Schwab      moved    for summary judgment       on   all   claims.   The trial


court found no genuine issue as to any material fact and granted Les Schwab' s motion for

summary judgment. Atkinson appeals.

                                                     ANALYSIS


         We review summary judgment orders de novo, viewing the facts in the light most

favorable to the nonmoving party.            Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d


16, 26, 109 P. 3d 805 ( 2005).        Trial courts properly grant summary judgment where the pleadings

and affidavits show no genuine issue of material fact and the moving party is entitled to

judgment      as a matter of   law. CR 56( c).      To defeat an employer' s motion for summary judgment


8 When asked whether he ever told Rory that a short lunch break would help alleviate some of
the   pain   during   migraines,    Atkinson   said, "   I believe I did ...    three or four times" and that he
recalls being told that he should work through it; but Atkinson cannot remember when he
brought this up. 3 CP at 446.

9 Ch. 49. 60 RCW.

                                                             6
No. 44326 -1 - II



in an employment discrimination case, an employee must do more than express an opinion or


make conclusory statements; the employee must establish specific and material facts to support

each element of a prima facie case. Marquis v. City ofSpokane, 130 Wn.2d 97, 105, 922 P. 2d 43

 1996).


                                                DISPARATE TREATMENT


           Atkinson contends that summary judgment in favor of Les Schwab was improper because

he established      a prima   facie disparate treatment      claim.   Specifically, he argues that he has direct

evidence of discriminatory intent or, in the alternative, that he meets the McDonnell Douglas'°

burden- shifting test.     Viewing the evidence in a light most favorable to Atkinson, we hold that

Atkinson failed to produce sufficient evidence that discriminatory intent was a substantial factor

in his termination under the direct evidence test. We hold further that Atkinson failed to produce

sufficient     evidence   of pretext     under   the McDonnell .Douglas test         Therefore, the trial court


properly granted Les Schwab summary judgment on Atkinson' s disparate treatment claims.
                                                  A. RULES OF LAW


            Disparate treatment occurs when an employer treats some people less favorably than
                                                                                       11
others     because   of race,   color, religion, sex, or     other protected status.        Hegwine v. Longview


Fibre Co., 162 Wn.2d 340, 354            n.7,   172 P. 3d 688 ( 2007).   Disability discrimination can give rise

to    a   disparate treatment   claim.    McClarty     v.   Totem Elec., 157 Wn.2d 214, 222, 137 P. 3d 844




 to McDonnell Douglas Corp. v. Green, 411 U. S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 ( 1973).
 11
      Disability is a protected status. RCW 49. 60. 180( 3).

                                                             7
No. 44326 -1 - II


          12
 2006).         A plaintiff may establish a prima facie case by either offering direct evidence of an

employer' s discriminatory intent, or, when a plaintiff lacks direct evidence, by satisfying the

McDonnell Douglas 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).

                                                 B. DIRECT EVIDENCE TEST


          Under the direct evidence test, a plaintiff can establish a prima facie case by providing

direct evidence that the defendant employer acted with a discriminatory motive in taking an

adverse employment action against an employee with a protected status. Kastanis, 122 Wn.2d at

491.   A       plaintiff must also        establish   that the    discriminatory    motivation was     a "'   significant or




substantial      factor in     an employment       decision. '     Kastanis, 122 Wn.2d at 491 ( quoting Buckley v.

Hosp. Corp. ofAm., Inc., 758 F.2d 1525, 1530 ( 11th Cir. 1985)).

          We generally consider an employer' s discriminatory remarks to be direct evidence of

discrimination. See Johnson               v.   Express Rent & Own, Inc.,         113 Wn. App. 858, 862, 56 P. 3d 567

 2002) (    reversing summary judgment for employer based on supervisor' s ageist comments that

plaintiff      did   not   fit company'   s   image -
                                                    of    a
                                                         " youthful,    fit - GQ'
                                                                              `     looking mold").

          Here, to satisfy the direct evidence test, Atkinson must demonstrate that Les Schwab

acted with a discriminatory motive, and that the discriminatory motive was a significant or

substantial factor in taking an adverse employment action against him based on his protected

                              Atkinson easily                    the             employment   action                He was
disability       status.                           satisfies           adverse                          prong.


discharged from his             position, which       is the   ultimate   adverse    employment   action.       In addition,



 12
   McClarty, Hill v. BCTI Income Fund - , 144 Wn.2d 172, 23 P. 3d 440 ( 2001), and Davis v.
                                        I
Microsoft Corp., 149 Wn.2d 521, 70 P. 3d 126 ( 2003), utilize a definition of "disability" that has
since been superseded by statute. RCW 49. 60. 040( 7). But these cases remain good law for the
propositions for which we cite them.


                                                                   8
No. 44326 -1 - II



Atkinson         presented           direct   evidence      of   discriminatory          motive    in Rory'   s   comment   that "[ he]


need[ s]    to   get [   his]   migraines under control or               find     work elsewhere."       1 CP at 84.


           Although a significant amount of time passed between Rory' s comment and Atkinson' s

termination, we assume, without deciding, that a statement of this nature constitutes direct

evidence         of    discrimination          when      viewed     in    a   light   most     favorable to Atkinson.       But even


assuming that Atkinson established that Rory' s comment was direct evidence of discrimination,

his disparate treatment claim still fails under the direct evidence test because he cannot produce

sufficient evidence that the discriminatory motive was a substantial factor in his termination.

           Atkinson contends that animosity existed between himself and his superiors because of

his    condition,        especially       after     he   sent   the 2006      e -mail.       He asserts that his termination nearly

three years later was the culmination of a deteriorated relationship. In response to Les Schwab' s

assertion that Atkinson' s inconsistent performance was the reason for his termination, Atkinson


claims that disciplinary action for performance- related issues does not make sense because he

had the consent and support of several of the area managers to appear before the management

review      board.          In his     view,   Atkinson'        s performance "        was -good enough to -run a multimillion


dollar     store."       1 CP at 88.


            But Atkinson' s subjective opinion does not establish that his medical condition was a

substantial           factor in his discharge13 and several of Atkinson' s reviews indicate performance


concerns as           the     sole    factor that    motivated      Les Schwab'          s   decision.   In March 2008, Atkinson' s



 13
      See Steckl       v.   Motorola, Inc., 703 F. 2d 392, 393 ( 9th Cir. 1983) (                    stating that mere assertion that
 defendant had discriminatory motivation and intent is inadequate to preclude summary
judgment);            see     also    Chen     App. 183, 191, 937 P. 2d 612 ( An employee' s
                                               v.   State," 86 Wn.
 assertion of good performance to contradict the employer' s assertion of poor performance does
 not    give     rise    to    a   reasonable       inference     of     discrimination.),        review denied, 133 Wn.2d 1020
  1997).


                                                                              9
No. 44326 -1 - II



performance review suggested that his commitment to the store, his ability to work cooperatively

with   customers             and   co- workers,   and    his ability to balance his          workload      in   a"    rapid   pace"



environment needed                 improvement.      2 CP       at   203.    Atkinson' s review in July 2008 mentioned

subpar communication skills and the need for development as a crew leader.

           In    a   December           2008    meeting,    Rory      told Atkinson       that    a "   quantum      leap" in job

performance          was      necessary.    2 CP   at   210.    Also, in 2008, neutral members of the management


review board traveled from Portland, Oregon to Chehalis specifically to meet with Atkinson to

discuss ways he could improve in certain areas before he next interviewed for the list, including

management skills and issues mentioned in negative reviews from his crew members.


           Moreover, it was Rory who both hired Atkinson and played an integral, if not the

primary, role in the decision to remove him. When someone is both hired and fired by the same

decision makers within a relatively short period of time, there is a strong inference that he or she

was not discharged because of any attribute the decision makers were aware of at the time of the
           14
hiring.         Hill    v.   BCTI Income Fund - , 144 Wn.2d 172, 189, 23 P. 3d 440 ( 2001) (
                                              I                                                                   citing Bradley

v.. Harcourt,        Brace & Co.          104 F. 3d 267, 270 -71 ( 9th Cir. 1996)).              Here, Atkinson was hired by

Rory in 2003, promoted by Rory in 2006, and fired by Rory in 2009. Atkinson made it clear that

Rory was aware of Atkinson' s condition when he was initially hired.

            Atkinson does not show that Les Schwab' s alleged discriminatory motive was a

substantial       factor in the decision to terminate his                   employment.    Atkinson' s burden under RCW


49.60. 180 is to present evidence sufficient for a trier of fact to reasonably conclude that the


14
     See   Bradley       v.   Harcourt, Brace &          Co., 104 F. 3d 267, 270 -71 ( 9th Cir. 1996) ( "[ W]here the
same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both
actions         occur    within     a   short   period     of   time,   a strong inference arises that there was no
discriminatory motive. ").

                                                                      10.
No. 44326 -1 - II



alleged unlawfully discriminatory animus was more likely than not a substantial factor in the

adverse employment action. Hill, 144 Wn.2d at 186 -87. Atkinson' s inability to demonstrate that

discrimination against his disability was a substantial factor leading to his termination fails to

create any genuine issue of material fact sufficient to reverse the trial court' s summary dismissal

of   his   claim.   Accordingly, Atkinson fails to establish a prima facie case of disparate treatment

under the direct evidence test.


                                        C. MCDONNELL DOUGLAS TEST


           In the alternative, Atkinson argues that he satisfied the McDonnell Douglas burden -

shifting test. Atkinson contends that any reason for his termination offered by Les Schwab was a

pretext.     Though Atkinson may be able to establish the elements of a prima facie case under the

McDonnell Douglas burden- shifting test, his disparate treatment claim fails because he cannot

demonstrate that Les Schwab' s articulated reasons for Atkinson' s termination were pretext.


            Under the McDonnell Douglas test, a plaintiff establishes a prima facie case if he

presents evidence        that ( 1) he belongs to   a protected class; (      2) he was treated less favorably in the

terms or conditions of his employment (3) than a similarly situated, nonprotected employee; and

 4) he     and   the   nonprotected " comparator"     were     doing   substantially the   same work.     Johnson v.


Dep' t     of Soc. &    Health Servs., 80 Wn. App. 212, 227, 907 P. 2d 1223 ( 1996).

            If the plaintiff establishes his 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 sufficient to raise a genuine issue of fact as to

whether      the    defendant discriminated   against    the    plaintiff.    Hegwine, 162 Wn.2d     at   354.   If the


 employer meets this intermediate production burden, the presumption established by having the

                                                           11
No. 44326 -1 - II



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 the defendant' s stated reason for the adverse action was in fact a 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

v.   Boeing Emps. ' Credit Union, 124 Wn. App. 71, 78, 98 P. 3d 1222 ( 2004).

          Even assuming, without deciding, that Atkinson has established a disparate treatment

prima facie case under the McDonnell Douglas test, his claim fails because he is unable to

demonstrate that Les Schwab' s proffered reasons for his termination were pretext and this failure

is fatal to his claim.


          To prove pretext, a plaintiff must show that the defendant' 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.      Fulton   v.   Dep' t    of Soc. &   Health


Servs., 169 Wn.         App. -137; 161; 279        P..3d 500 ( 2012)._ To meet this burden, the employee is not
                                                       -


required to produce evidence beyond that already offered to establish a prima facie case or direct

  smoking    gun"       evidence.         Sellsted v. Wash. Mut. Say. Bank, 69 Wn. App. 852, 860, 851 P. 2d

716, review denied, 122 Wn.2d 1018 ( 1993).


          A court may grant summary judgment when the record conclusively revealed some other,

nondiscriminatory reason for the employer' s decision, or if the plaintiff 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   occurred.      Milligan v. Thompson,


 110 Wn.    App.       628, 637, 42 P. 3d 418 ( 2002).           Thus, the trial court should submit the case to a


                                                                 12
No. 44326 -1 - II



jury only when it determines that all three facets of this burden -shifting scheme are met and that

the parties have produced sufficient evidence supporting reasonable but competing inferences of

both discrimination and nondiscrimination. Fulton, 169 Wn. App. at 149.

        Under these facts, our analysis of the pretext issue under McDonnell Douglas will depend

on substantially the same evidence as the " substantial factor" analysis above. Assuming that the

burden did shift to Les Schwab to articulate a nondiscriminatory reason for its decision to

discharge Atkinson, it has done so with a lengthy and detailed list of performance concerns. The

burden then shifts back to Atkinson to show that the reasons are mere pretext for a

discriminatory purpose, and if he cannot, summary judgment for Les Schwab is appropriate.

Grimwood     v.   Univ. of Puget Sound, Inc., 110 Wn.2d 355, 364, 753 P. 2d 517 ( 1988).


         Our Supreme Court' s          pretext analysis     in Grimwood is illustrative.       There, the plaintiff


worked as    the director     of    food   services   for the University     of   Puget Sound ( UPS).   Grimwood,


110 Wn.2d     at    356.    Following his termination, Grimwood alleged age discrimination, but UPS

contended that serious performance issues were the actual reason. Grimwood, 110 Wn.2d at 357.

         In support of his position, Grimwood offered letters from users of his services expressing

satisfaction with     the   same.    Grimwood, 110 Wn.2d         at   364.   But the court stated that these letters


were insufficient to overcome the reasons articulated by UPS for Grimwood' s termination

because the letters did not come from anyone charged with evaluation of his performance

whereas UPS supported its own reasons with statements from individuals who did evaluate and

 supervise Grimwood. Grimwood, 110 Wn.2d at 365.


         Moreover, the court _
                             found that the employer' s reasons for discharging plaintiff were

 bolstered by the fact that there were written complaints long before plaintiff's termination and by

 the fact that some complaints about his performance came from those under plaintiff' s

                                                            13
No. 44326 -1 - II



supervision rather    than   someone with       authority to discharge.        Grimwood, 110 Wn.2d at 365.


UPS had also warned Grimwood six months before his termination that continued substandard

performance    in the designated       areas   would   be   cause    for dismissal.   Grimwood, 110 Wn.2d at


365.   The employer called Grimwood' s job deficiencies to his attention in writing, suggested

ways he could improve his performance, and expressed a willingness to assist him in correcting

the problems. Grimwood, 110 Wn.2d at 364 -65.


        Here, in addition to his own opinion, Atkinson offers declarations that either support his

performance or question      Les Schwab'       s motivation       for removing him. But like Grimwood, none


came   from   anyone   having   supervisory      power.          Instead, these declarations were from family

members and a former co- worker.


        Furthermore, as mentioned above, Les Schwab presented evidence establishing that it had

well -documented concerns regarding Atkinson' s performance. These issues were documented in

performance reviews,     meeting       notes, and e- mails.       They were expressed by store managers, area

managers,     and   members   of   a    promotion   review        board.   Some of these documents indicate


performance concerns expressed by employees under Atkinson' s - supervision, who had no

authority to discharge him.

         Atkinson fails to establish that Les Schwab' s reasons for terminating Atkinson' s

employment had no basis in fact or were not really motivating factors in the ultimate decision.

Even when the evidence is viewed in a light most. favorable to Atkinson, Les Schwab presented

abundant and uncontroverted evidence that no discrimination occurred, and Atkinson' s evidence


is too weak to establish that the reasons offered by Les Schwab were mere pretext. Accordingly,

Atkinson' s disparate treatment claims fail, and summary judgment was therefore appropriate on

this claim.


                                                            14
No. 44326 -1 - II


                                                      ACCOMMODATION


          Atkinson next argues that Les Schwab failed to reasonably accommodate his medical

needs.     He does not assert that he requested and was subsequently denied accommodations;

rather, he contends that certain accommodations had been offered since the beginning of his

employment with         Les Schwab        and       that   Rory   began to   withdraw    those     accommodations.   Les


Schwab responds that Atkinson cannot retroactively request accommodations and that if the law

did allow such a request, the accommodations he sought were unreasonable because they are

                                               15
essential   functions   of   his   position.        Viewing the evidence in a light most favorable to Atkinson,

we hold that he failed to produce evidence sufficient to establish a prima facie case that Les

Schwab failed to offer reasonable accommodations because the accommodations Atkinson

desired     would    have    altered   essential      functions     of   Atkinson' s   position.     Therefore, summary

judgment was properly granted in favor of Les Schwab on this claim.

                                                      A. RULES OF LAW


          Our high court has laid out four elements that an employee must show to establish a


prima     facie   case of    failure - -reasonably
                                      to                     accommodate      a   disability: - ( 1) the employee has a

sensory, mental, or physical abnormality that substantially limited his or her ability to perform

the   job; ( 2)   the employee was qualified to perform the essential functions of the job in question;

 3) the employee gave the employer notice of the abnormality and its accompanying substantial



 15 Les Schwab also argues in its brief that Atkinson did not engage in the " interactive process"
which is the terminology our courts use to describe the communication that must occur between
the employer and the employee so that the employer remains reasonably apprised as to the
employee' s accommodation needs.    While Les Schwab is likely correct that this failure would
 defeat Atkinson' s accommodation claim, each party devotes more focus to the issues set forth in
the   analysis     below.    We do not address whether Atkinson failed to engage in the interactive
process because his accommodation claim is fatally flawed on other grounds.

                                                                  15
No. 44326 -1 - II



limitations; and ( 4) upon notice, the employer failed to affirmatively adopt measures that were

available    to the   employer and       medically necessary to              accommodate         the abnormality.   Riehl v.


Foodmaker, Inc., 152 Wn. 2d 138, 145, 94 P. 3d 930 ( 2004).                           Our analysis focuses primarily on

the   second element —the       essential functions of the job.


                                                B. ESSENTIAL FUNCTION


         An employer is not required to offer accommodations that alter the essential functions or

fundamental job duties         of a given position.          Davis     v.   Microsoft    Corp., 149 Wn.2d 521, 534, 70

P. 3d 126 ( 2003).          In Davis,     a systems engineer sued his former employer for failing to

reasonably accommodate him when various medical issues required him to reduce his hours and

workload     drastically. 149 Wn.2d at 527. As a systems engineer, Davis was regularly required to

work over 50 hours a week, sometimes between 60 to 80 hours when new products were

launched. Davis, 149 Wn.2d at 526.


         The court in Davis affirmed a grant of summary judgment in favor of Microsoft noting

that the varying hour requirements, the frequent travel, and the unpredictable customer demands,

taken together, constituted an           essential      function    of   Davis' s    position.    149 Wn.2d -at 526. This


case   and   Davis    are   factually   similar    in   some   key       respects.    Here, Atkinson felt that extended


hours    and   inconsistent breaks        exacerbated       his    migraine     symptoms.         Atkinson claims that he


could have been accommodated fairly if his work hours were reduced to 40 or 50, a level similar

to those he     worked      in the "    sales   and     service"   position.        Atkinson also felt that Les Schwab


should allow him the flexibility necessary to take breaks and uninterrupted lunches when he

experienced migraines.           But long hours, changing conditions, and availability to handle issues

that arise unexpectedly are key aspects of a managerial role. The Chehalis Les Schwab averaged

more    than five million dollars in            sales   annually.      To handle this volume, there were nearly 30

                                                                  16
No. 44326 -1 - II



employees and only 3 managers at any given time. The management team was expected to be at

the    location before the            hourly   employees        and    to   stay    later.   The luxury of completely

uninterrupted breaks was not available to managers as it may have been for others.

            By his own admission, Atkinson never knew whether he did or did not need additional

flexibility    to take   breaks because        of   the sudden   onset of     his   migraines.   It appears that Atkinson


desired the slower pace of his " sales and service" job but with the higher compensation of the

assistant manager position.             Atkinson     was well                         during his employment and it was

reasonable for Les Schwab to expect longer hours from salaried managers than they would

hourly      employees.        Atkinson' s desired accommodations would have required Les Schwab to


alter essential functions of his position. This is a result that the law neither intends nor requires.


The trial court did not err in granting summary judgment in favor of Les Schwab on Atkinson' s

accommodation claim.



                 C. APPLICATION OF CLEVELAND V. POLICY MANAGEMENT SYSTEMS CORP.


            Atkinson also claims that the trial court granted summary judgment in favor of Les

Schwab on Atkinson' s accommodation claim largely because Atkinson claimed total- disability

on    his   application      for   disability benefits   under    the SSA.          According to Atkinson, Cleveland"

precludes      summary judgment on these.              grounds.        Les Schwab argues that Atkinson' s claim of


total disability for the purpose of SSA benefits was diametrically opposed to his assertion that he

could       perform    the   essential   functions     of    his job   with reasonable       accommodations.     Because


Atkinson offered no explanation to resolve the inconsistency between his SSA disability


16
     Atkinson    made    nearly $ 115, 000 in his last year with Les Schwab.

17
      Cleveland   v.   Policy      Mgmt. Sys.       Corp.,   526 U. S. 795, 119 S. Ct. 1597, 143 L. Ed. 2d 966
  1999).


                                                                 17
No. 44326 -1 - II



application       and    his    current      accommodation         claim,   his argument that Cleveland precludes


summary judgment fails.

           The Court in Cleveland determined that claims for Social Security Disability Insurance
                                                   Act18   (

 SSDI)      under   the    Social      Security                SSA) and for damages under the Americans with


Disabilities     Act19 ( ADA) do not inherently conflict to the point that receipt of SSDI benefits

estops    the   recipient      from pursuing      an   ADA       claim.   Cleveland   v.   Policy      Mgmt. Sys.       Corp.,   526

                                                                                      20
U.S. 795, 802 -03, 119 S. Ct. 1597, 143 L. Ed. 2d 966 ( 1999).                              The Court explained that the


confusion derives from the fact that the ADA requires that an individual maintain the ability to

perform essential functions of her job, at least with reasonable accommodation, while eligibility

for SSDI benefits is           reserved      for those   having    disabilities   so severe     that   they   are "`   unable to do


 their]    previous work '           and '   cannot ...        engage in any other kind of substantial gainful work

which      exists   in the     national      economy. '         Cleveland, 526 U. S.       at   797 ( alteration in original)


 quoting 42 U. S. C. § 423( d)( 2)( A)).


           The court reconciled the seemingly divergent provisions by characterizing the total

disability necessary for SSDI benefits as " often impl[ying] a context -
                                                                       related legal conclusion."

Cleveland, 526 U. S.            at    802.     In effect, a person can be considered legally disabled for the'

purpose         of the    SSA while            perhaps     able to        work if offered the            kind      of reasonable

accommodations that the SSA does not take into account. Cleveland, 526 U.S. at 802 -03.



18
      42 U. S. C. A. § 423( d)( 2)( A).

 19
      42 U.S. C. A § 12111( 8).

20
      The ADA is the federal             counterpart      to WLAD.        See Clarke v. Shoreline Sch. Dist. No. 412,.
 106 Wn.2d 102, 118, 720 P. 2d 793 ( 1986) (                        stating that Washington courts look to federal
discrimination law in interpreting the WLAD).

                                                                   18
No. 44326 -1 - II



          Atkinson is correct that his application for ( and subsequent receipt of) SSDI benefits in

and of itself does not constitute appropriate grounds for summary dismissal of his WLAD claims

nor    does it estop him from seeking money damages.                          But Atkinson' s accommodation argument


is flawed for two           reasons: (    1) he fails to explain the contradiction between his SSDI application

and his WLAD claims as Cleveland requires, 526 U. S. at 806; and ( 2) days after his termination,

Atkinson' s doctor made several additional statements that described the extent of Atkinson' s


condition and his inability to work.

          The Cleveland Court held that although an ADA plaintiff is not estopped from seeking

damages after receiving SSDI benefits, he or she cannot simply ignore the apparent contradiction

arising   out of      the    earlier claim of      total   disability.      526 U. S.   at   806.   A discrimination plaintiff


must proffer a sufficient explanation as to the inconsistencies and if they fail to do so, prior

assertions of inability to work in the earlier application will appear to negate essential elements

of ADA claims, rendering summary judgment appropriate.21
          In his application for SSDI benefits, Atkinson describes himself as being completely

bedridden       by    the    severe      pain   associated     with   his   migraines.       Atkinson mentions that his job


duties required him to run, walk, climb, and lift for approximately five to seven hours a day.

Atkinson then claims that he cannot walk, drive, lift objects, or interact with others during

migraines, and         that   he   was unable      to   work   beginning     on   March 6, 2009.      On March 18, 2009, 12


days after Atkinson was removed from his position, Atkinson' s doctor, Dr. Robinson, filled out a

medical certification form on which she answered several questions about Atkinson' s condition


21 "
       Summary judgment for a defendant is appropriate when the plaintiff `fails to make a showing
sufficient      to   establish     the   existence of an element essential          to [ her]   case. "'   Cleveland, 526 U. S.
at .806   (   alteration     in   original) (   quoting Celotex Corp. v. Catrett, 477 U. S. 317, 322, 106 S. Ct.
2548, 91 L. Ed. 2d 265 ( 1986)).


                                                                      19
No. 44326 -1 - II



and   the   work -
                 related       limitations it    creates.      She   answered " no"    to the question inquiring as to

whether      Atkinson    was able      to   perform work of       any kind,   including   light   duty   tasks.    1 CP at 180.


She   also    answered "[      n] o"   when asked whether Atkinson could perform one or more of the,


essential    functions    of   his job. 1 CP at 180.


            In early June 2009, Atkinson saw Dr. Robinson again who concluded their meeting with

a report stating that Atkinson' s condition had not improved and that she recommended that

Atkinson not return to work.


            Atkinson has made no . attempt to explain the contradictory nature of his previous

statements or to resolve the disparities between those statements and his current belief that he

can perform       the    essential     functions     of   his former job.      Atkinson submitted a declaration by

Merrill Cohen, who             claimed       to have      a " vocational   rehabilitation    practice"      and    who   served




regularly     as a " vocational expert"         in   disability   adjudications   before   administrative         law judges. 4


CP    at   762. The essential premise of Cohen' s declaration is that applications for various benefits


by unemployed workers often require conclusory statements that appear mutually exclusive but

actually are not.


            But Cohen is describing the relationship between Atkinson' s application for emergency

unemployment         benefits     and   Atkinson'     s need   for   accommodation.        Cohen addresses the fact that


Atkinson indicated that he was fully able to work on the aforementioned application ostensibly to

preempt any attempt by Les Schwab to defeat Atkinson' s accommodation argument based on the

statements Atkinson provided to the Employment Security Department of Washington.

            Though      somewhat similar,        this is     not what   Cleveland     requires.     Rather, Atkinson was


required to explain inconsistencies created by his previous statements that he was fully unable to



                                                                  20
No. 44326 -1 - II



work in any capacity and to reconcile those statements with his later claim that his employer

failed to reasonably accommodate him. This is the explanation Atkinson failed to address.

            Furthermore, a party cannot create a genuine issue of fact sufficient to survive summary

judgment simply by contradicting his or her own previous sworn statement. Cleveland, 526 U. S.
at   806.     Atkinson and Atkinson' s doctor stated that he was unable to work because of his

condition.      Atkinson has acted in accordance with those statements since his termination from

Les Schwab        and     has    not   returned    to   employment.      Atkinson' s accommodation claim fails


because he has not established the existence of any genuine issue of material fact regarding his

ability to    perform     the    essential   functions   of   his former job.    Summary judgment was proper on

this claim.


                                                         RETALIATION


            Atkinson next asserts that Rory developed a discriminatory animus towards Atkinson

following his      2006     e -mail    to Les Schwab'      s corporate office.     Atkinson alleges that Rory took

retaliatory    action     in the form    of (1)   complaints about     Atkinson' s   disability, ( 2)   overt criticism of


Atkinson'     s work, (    3) increasing Atkinson' s workload, and ( 4) undermining Atkinson' s authority.

Viewing the evidence in a light most favorable to Atkinson, we hold that he failed to produce

evidence sufficient to establish the requisite causal link between his participation in statutorily

protected      activity    and   the   adverse employment action         taken   against   him.   Therefore, summary

judgment was properly granted in favor of Les Schwab on Atkinson' s retaliation claim.

                                                        A. RULES OF LAW


            The WLAD prohibits retaliation against a party asserting a claim based on a perceived

violation of his civil rights or participating in an investigation into alleged workplace

 discrimination. RCW 49. 60. 210( 1).               To establish a prima facie retaliation case, a plaintiff must


                                                                21
No. 44326 -1 - II


show   that ( 1)       he     engaged    in statutorily      protected    activity, ( 2)   his employer took adverse


employment           action   against    him,   and (   3)   there is a causal link between the activity and the

adverse action.        Short    v.   Battle Ground Sch. Dist.,        169 Wn. App. 188, 205, 279 P. 3d 902 ( 2012).

Our focus here is whether Atkinson engaged in statutorily protected activity and if so, whether

that activity was causally linked to his demotion.22
                                        B. STATUTORILY PROTECTED CONDUCT


        An employee engages in WLAD -
                                    protected activity when he opposes employment

practices forbidden by antidiscrimination law or other practices that he reasonably believed to be

discriminatory.         Short, 169 Wn.       App.    at   205.   It is not necessary that the conduct complained of

actually be         unlawful    because "` [ a] n employee who opposes employment practices reasonably


believed to be discriminatory is protected by the opposition clause whether or not the practice is

actually    discriminatory. "' Graves v. Dep' t of Game, 76 Wn. App. 705, 712, 887 P. 2d 424 ( 1994)

 internal   quotation marks            omitted) (   quoting Gifford      v.   Atchison, Topeka &    Sante Fe   Ry.,   685


F. 2d 1149, 1157 ( 9th Cir. 1982)).                 Absent some reference to the plaintiff' s protected status, a


general complaint about an employer' s unfair conduct does not rise to the level of protected


activity in     a   discrimination      action under      WLAD. Alonso        v.   Qwest Commc ' ns Co.,   178 Wn. App.

734, 315 P. 3d 610, 620 -21 ( 2013) (            citing Graves, 76 Wn. App. at 712)).

         Here, Atkinson sent an e -mail to company managers above his local managerial structure

because he was concerned about Rory' s statement and the implication that Atkinson' s condition

may    be   a   detriment to his        continued       mobility.     Atkinson was fearful that his disability alone

would   bar him from future             promotion.        Refusal to promote an employee because of a disability


 22 Because Atkinson was removed from his managerial role, the second element is easily
 satisfied and not contested by the parties.

                                                                 22
No. 44326 -1 - II



would     be   a violation of       WLAD. RCW 49. 60. 180( 3).                 It is fair to conclude that Atkinson wrote


the e -mail in opposition to an employment practice that he reasonably believed would be

discriminatory.             When the evidence is viewed in a light most favorable to Atkinson as the


nonmoving party, his e -mail constitutes protected activity.

                                                        C. CAUSATION


          Atkinson must also demonstrate that sending the e -mail and his removal as manager were

causally   linked.          Causation can be inferred from the timing of the adverse action; proximity in

time between the adverse action and the protected activity, coupled with the existence of

satisfactory work performance and supervisory evaluations suggest an improper motive. Kahn v.
Salerno, 90 Wn.              App.   110, 130 -31,      951 P. 2d 321,          review   denied, 136 Wn.2d 1016 ( 1998).


Moreover, to show a causal connection, the employee must specifically show that the employer' s

motivation for the discharge was the employee' s exercise or intent to exercise the protected

rights.    Wilmot      v.    Kaiser Aluminum & Chem.             Corp., 118 Wn.2d 46, 68 -69, 821 P. 2d 18 ( 1991).

The plaintiff need not establish that retaliation for protected activity was the sole reason for the

adverse employment- action; he must show only that retaliation was -a substantial- motivating
                    -

factor. Allison        v.   HousingAuth., 118 Wn.2d 79, 96, 821 P. 2d 34 ( 1991).


          Atkinson fails to          establish   the   causation element.          He makes a speculative assertion that


Rory    wanted    to   retaliate after   Atkinson       sent   the   e -mail   because "[   Rory] felt like I was going after

him."     1 CP    at   127.     Describing   the    alleged retaliation,        Atkinson    states, "[   T] here [ were] a lot of


 instances     where    there was just     no    leeway,"      and   that "[   Rory] would work things in a way that got




                                                                     23
No. 44326 -1 - II



the crew      mad at [   him]."      1 CP     at   128.   Atkinson claims that Rory told employees he was " hiding

out"   in the bathroom         when      he   was    experiencing illness from         migraines.        3 CP   at   490. Atkinson


recounts a specific instance when Rory approved his vacation time off then told the other

employees he was upset with Atkinson for being elsewhere during a busy time.

            Notwithstanding the fact that Atkinson may have found these behaviors offensive, they

do not appear to be connected with his 2006 complaint nor are they adverse employment actions

in themselves.           Furthermore, there is a striking lack of temporal proximity which tends to

indicate that there is no nexus between Atkinson' s e -mail and his discharge. Francom v. Costco

Wholesale Corp., 98 Wn. App. 845, 863, 991 P.2d 1182, review denied, 141 Wn.2d 1017 ( 2000).
The court in Francom noted that 15 months had passed between the plaintiff' s complaint and an

adverse employment action when it declared a connection unlikely. 98 Wn. App. at 863.

            Here, nearly three full years passed23 between Atkinson' s 2006 e -mail and his 2009

termination.          During      this     time,     Rory supported Atkinson' s attempted promotion to store

manager. Finally, there was evidence of repeated unsatisfactory performance evaluations before

Atkinson' s termination              Atkinson fails to establish that his participation in a protected activity

was     a   substantial   factor in his termination.                 Even when viewed in a light most favorable to


Atkinson, he fails to           establish a prima           facie    case   for   retaliation.   Summary judgment to Les
                                                                                                    24
 Schwab      on    Atkinson'    s unlawful retaliation claim was             properly    granted.




23
      See   also   Villiarimo   v.   Aloha Island Air, Inc., 281 F. 3d 1054, 1065 ( 9th Cir. 2002) ( finding                   that
 18 months between complaint and action is too long to give inference of causation).
 24
      Atkinson     also attempts      to   advance a       hostile   work environment claim.             We decline to consider
 this issue because Atkinson               did     not advance   this     argument    below. A hostile work environment
 claim does not appear in Atkinson' s response to Les Schwab' s motion for summary judgment
 nor does it appear as a cause of action in his complaint. We consider only evidence and issues

 called to the attention of the trial court. RAP 9. 12.
                                                                     24
No. 44326 -1 - II



                                        SANCTIONS AND MOTION TO STRIKE


           Atkinson appeals the trial court' s denial of his second motion for sanctions claiming that

he   was    prejudiced     by   the   inability    to    obtain    necessary   discovery.   Additionally, Atkinson

contends that the trial court erred in striking entire witness declarations instead of only

inadmissible     portions.      We hold that the trial court did not abuse its discretion in refusing to

impose additional sanctions nor did it strike Atkinson' s witnesses' declarations.

                                                       A. RULES OF LAW


           A trial court exercises broad discretion in imposing discovery sanctions under CR 26( g)

or 37( b) and its determination will not be disturbed absent a clear abuse of discretion. Magana v.

Hyundai Motor Am., 167 Wn.2d 570, 582, 220 P. 3d 191 ( 2009).                               A trial court abuses its


discretion    when   its   order   is manifestly        unreasonable or    based   on untenable grounds.   Mayer v.


Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P. 3d 115 ( 2006). "                     A discretionary decision rests on

 untenable grounds' or is based on ` untenable reasons' if the trial court relies on unsupported


facts or applies the wrong legal standard; the court' s decision is ` manifestly unreasonable' if `
                                                                                                  the

court, despite applying the correct legal standard to the supported facts, adopts a view that no

reasonable person would            take. "'   Mayer, 156 Wn.2d at 684 ( internal quotation marks omitted)


 quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P. 3d 6338 ( 2003)).
           An appellate court reviews all trial court rulings made in conjunction with a summary

judgment      motion   de   novo.     Folsom      v.   Burger   King,   135 Wn.2d 658, 663, 958 P. 2d 301 ( 1998).




                                                                  25
No. 44326 -1 - II



This includes   a   ruling   on a motion       to    strike evidence.       Rice   v.   Offshore Sys., Inc., 167 Wn. App.

77, 85, 272 P. 3d 865, review denied, 174 Wn.2d 1016 ( 2012).

                               B. DENIAL OF SECOND MOTION FOR SANCTIONS


         Atkinson deposed           Stacey   Lynch,      a   human    resources         manager for Les Schwab. During


the first deposition, counsel for Les Schwab instructed Lynch not to respond to the majority of

Atkinson' s inquiries. In response, Atkinson moved for sanctions, requesting a continuance of the

summary judgment          hearing,       attorney fees,      and   costs.   for   a second        deposition.         The trial court


granted Atkinson' s motion in part.


         Still unsatisfied after conducting the second deposition, Atkinson filed a second motion

for sanctions to which he also attached declarations from Gerry Arnson, Cohen, and Valissa

Holdt.    Les Schwab moved to strike thesee declarations, but the court substantially denied the

motion,   striking only inadmissible               hearsay   statements.      The trial court also denied Atkinson' s


second motion for sanctions.


         Atkinson' s primary contention is that Les Schwab continued to obstruct the discovery

process because Lynch answered, "              I don' t know" to over 100 of his questions during her second

deposition.     4 CP    at   666.       Atkinson asked an array of questions that someone who works in

human resources would not be expected to know, including questions concerning stock market

investment, Les Schwab' s gross revenue, why Les Schwab' s chief executive officer is a lawyer,
                                                    25
and where     he is   admitted     to   practice.




25
     Atkinson   also    fails to    cite   authority     other   than the     standard       of review.             We can refuse to
 consider   this      argument      on     these     grounds     alone.      RAP         10. 3(   a)(   5) -( 6);   Cowiche   Canyon

 Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P. 2d 549 ( 1992).
                                                                 26
No. 44326 -1 - II



           The record shows that Lynch made an effort to prepare for questions on topics that


pertained to the case and that were reasonably within her knowledge. Furthermore, in making its

ruling, the trial court considered the full transcript of Lynch' s second deposition. The trial court

is in a better position than an appellate court to determine the appropriate discovery sanctions.

Magana, 167 Wn.2d           at   582   n. 5.   For this reason deference should normally be given to the trial

court' s   decision. Magana, 167 Wn.2d               at    583 ( citing Wash. State Physicians Ins. Exch. & Ass' n


v.   Fisons   Corp.,    122 Wn.2d 299, 339, 858 P. 2d 1054 ( 1993)).                Given the record, the trial court


did not base its decision on untenable or manifestly unreasonable grounds and, therefore, did not

abuse its discretion.


                                                   C. MOTION TO STRIKE


           Atkinson contends that the trial court abused its discretion in choosing to strike

declarations.      Atkinson' s     argument       fails.   Three declarations were the subject of Les Schwab' s


motion     to strike.    The order denying that motion specifically indicates that the declarations will

be    considered    except   for those         portions    that   contain   inadmissible   statements.   Moreover, the


order granting Les Schwab' s motion for summary judgment lists every part of the record that the

trial   court   considered       before making its determination.              Each one of the declarations which


Atkinson claims should not have been struck was, in fact, not struck. The trial court did not en.




                                                                  27
No. 44326 -1 - II




        We affirm.


        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.




We concur:




WC     SWICK, C. J.




LE




                                              28
