            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

HOLSEY SATTERWHITE, Individually,              No. 68763-8-1


                         Appellant,            DIVISION ONE


                v.

                                               UNPUBLISHED OPINION
STATE OF WASHINGTON,
UNIVERSITY OF WASHINGTON,                                                         o




                         Respondent.           FILED: October 28, 2013

      Schindler, J. — Holsey Satterwhite and his attorney Thaddeus P. Martin appeal

the award of attorney fees and costs in the amount of $78,968.25 to the University of

Washington under CR 11 and RCW 4.84.185. We reverse and remand.

                                           FACTS


      Zynovia Hetherington is the Director of the Children's Welfare Teaching

Assistance Program (CWTAP), a specialized three-year master's in social work degree

at the University ofWashington (UW).1 Hetherington manages the program and
supervises "Teaching Associates, also known as Practicum Instructors and Field

Instructors." Teaching Associates instruct, train, and supervise the CWTAP graduate

students.




      1Hetherington is African American.
No. 68763-8-1/2


       Holsey Satterwhite applied for a Teaching Associate position in May 2008.

Satterwhite is an African American man with a master's degree in social work.

Hetherington and several others interviewed Satterwhite and recommended hiring him

for the position. In August, Dr. Margaret Spearmon, the Associate Dean of the School

of Social Work, and the Dean of the School of Social Work, Edwina Uehara, appointed

Satterwhite to the Teaching Associate position for the 2008 to 2009 academic year.2
       Four of the Teaching Associates worked at the Seattle campus. Each Teaching

Associate supervised between 6 and 15 CWTAP graduate students. Satterwhite was

the only male instructor in the CWTAP. Satterwhite and Teaching Associate Tammy

Inselman worked at the Tacoma campus. Satterwhite and Inselman conducted

combined monthly or bi-monthly training sessions together.

       In November 2009, Inselman told Hetherington that one of her students, Tiffany

McRae, had expressed concerns about Satterwhite. Inselman said McRae said

Satterwhite had asked her out on dates and "complained that the requests made her

uncomfortable." Inselman also told Hetherington that during a joint training session,

"Mr. Satterwhite used Ms. McRae as an example and, in doing so, he touched her

shoulder."


      On November 24, Hetherington met with McRae and Inselman. McRae told

Hetherington that Satterwhite invited her to go to a church banquet at Fort Lewis and

asked her if she wanted to go to the movies. McRae said that she wanted to attend the

church event "to network in the community, particularly around people of-color issues

and so this event seemed the perfect opportunity to do just that." But the request that



        Associate Dean Spearmon is African American and Dean Uehara is Japanese American.
No. 68763-8-1/3


McRae wear a dress to the event made her "uncomfortable." McRae testified, in

pertinent part:

             In August 2009, I stopped by Holsey's office to ask him about the
       old OASIS program for African-American children. We started chatting
       and I told him I lived in Eatonville and he told me he lived in Graham and
       suggested we do something sometime as we lived near each other. He
       then invited me to go with him to a banquet at Ft. Lewis that was related to
       some of his church activities. I work for the Pierce County AIDS
       Foundation and one of my tasks is to network in the community,
       particularly around people of-color issues and so this event seemed the
       perfect opportunity to do just that. 1did not perceive any problem with
       attending this event with Holsey. I told him of my professional interests
       and so I took our going to the banquet as a professional event; I also
       assumed he knew where I worked. What made me uncomfortable about
       going with Holsey to this event was his mentioning to me that I should
       wear a dress. He explained that the banquet was a formal affair and so
       he wanted me to wear a dress. A couple of weeks later, I realized that I
       would have to work the day of the banquet and texted him a message (we
       had exchanged phone numbers) telling him I could not make it.

       McRae also described the training session where Satterwhite used her "in an

example for a social work case and pointed his finger into my shoulder to make a point."

McRae said she did not "mind him using me in his example" but "did not like being

touched."


       On November 25, Hetherington and Associate Dean Spearmon met with

Satterwhite. Satterwhite said that after a discussion with McRae about race, he invited

her to go to a church event. Satterwhite said that he told McRae she should wear a

dress to the church event because "[ijt's a traditional black church. [T]he guys wear

black suits or tuxedos and the women wear black dresses." Satterwhite testified, in

pertinent part:

                       [McRae] came up to me and she just struck up a
       conversation.
                       And what she said, she was like -- because we were talking
       about something, that there was race in the context of black and white,
No. 68763-8-1/4



       and that's when she brought it up. She said, I live in Eatonville and there
       isn't a lot of black people that live up there.
                    I said, I live in Graham. I said, There's not a lot of black
       people over there either.
                     She was asking, Well, what do you do?
                     I said, Well, I have my church, I have several organizations I
       belong to, that, you know, I know other blacks.
                     And so she --1 told her then, I said - my pastor and his
       wife's anniversary is coming up. I said, You are welcome to go if you
       want, I can get you a ticket. I said, And you can go. I said, I will introduce
       you to other people there. I said, It's a traditional black church, just so you
       know, so that means that men wear their black suits and women their
       black dresses.
                       She said she had a son, who I think was seven years old.
                       I told her, I said, Well, my lady friend, the lady I was seeing
       at the time, I said, She has a son about the same age. I said, I'll introduce
       you to her, you guys can talk. I said, She can probably take you around, if
       you would like, and introduce you.
                       I said, My fraternity, we have outings, family outings every
       year. I said, the Masonics that I belong to --1 said, So I can at least get
       you there and introduce you and you can take it from there.
                      She was like, Oh, okay, okay, okay.
                       I'm like, You can go from there. I said, That will help you
       out.
                     She goes, Okay.
                     I do remember that conversation.
              Q      What did she say in response?
              A      She said, Okay, that would be nice.
              Q      Okay.
                     She didn't seem uncomfortable with it at all?
              A      No, absolutely not.

       Satterwhite denied asking McRae on a date but admitted touching her on the

shoulder during a training exercise. Satterwhite testified, in pertinent part:

       I'm like, How was that asking her on a date? Because I told her, When I
       was telling her specifically about the banquet, I said I'll introduce you to
       my lady friend, and you can meet her and y'all can talk. I'll introduce you
       to as many black people as you want to and you can go from there.
               I failed to see that I was asking her on any type of date, if you want
       to add the caveat of it being any type of romantic-type situation. I was
       explaining that to her.
No. 68763-8-1/5


       Satterwhite said that he invited McRae to attend the banquet to help her network.

Satterwhite expressed his concern that Hetherington and Associate Dean Spearmon

were using a double standard.

       No one says anything when the females, you know, go out to eat and
       socialize after class and stuff like that. Why is it different for me? And I
       never got a response.
             And so I'm like, that's a -- that's a double standard. That -- that
       makes it look like, oh, well, this man is coming on. I'm not coming on to
       her. I had no intention, nor do I have now, or any type of romantic stuff
       with this woman. Why is there a double standard, that if I do the same
       thing that I seen them, including my director do, then why is it a problem,
       but it wasn't a problem for them?

       Associate Dean Spearmon told Satterwhite that she planned to meet with McRae

and that he "could have the University-wide ombudsman ... if [he] wanted to. But

[Associate Dean Spearmon] said, [she would] rather if we handled this here with us."

Satterwhite also testified that Associate Dean Spearmon assured him that "[t]his is low

level. . . . We'll get this settled as quick" as possible.

               [Associate Dean Spearmon] said - yeah, she said something like --
       because I'm like, Well, what does this mean?
              And she said, Well, urn, urn, urn, you're okay, you won't, you know,
       lose your job. She says, I've seen cases much worse than this, she says,
       So you'll be okay. She said, This is low level. She said, This is low level.

       In late November, Associate Dean Spearmon, Director Hetherington, and

CWTAP Associate Director Carol Donaldson met with McRae. McRae said that she did

not want to see Satterwhite again and "felt sexually harassed." After the meeting,

Associate Dean Spearmon and Dean Uehara concluded that McRae had alleged

Satterwhite violated UW policies, "including those prohibiting sexual harassment."

       On December 8, Associate Dean Spearmon and Dean Uehara met with

Satterwhite. Associate Dean Spearmon told Satterwhite that McRae complained that
No. 68763-8-1/6



"he had asked Ms. McRae at attend a formal social gathering at which she was to wear

a dress," touched her shoulder during training, and "inquired into her personal life."

Associate Dean Spearmon explained that under the Faculty Code, the options were

"initiation of proceedings with the University's Ombudsman's Office, investigation of the

allegations by the University Complaint and Resolution Office (UCIRO), or an agreed

resolution." According to Associate Dean Spearmon, Satterwhite "did not want a formal

investigation or to involve the University Ombudsman's Office, but that he instead

wanted to try and resolve the matter directly."

       After the meeting, Associate Dean Spearmon and Dean Uehara asked

Hetherington "to look into other CWTAP duties Mr. Satterwhite could perform through

the end of his appointment (June 30, 2010) where he would not have any more one-on-

one contact with students, including Ms. McRae."

       On December 17, Associate Dean Spearmon sent Satterwhite a letter describing

the agreement to modify his appointment and reduce his position to 80 percent. The

letter states, in pertinent part:

       [T]his letter is to confirm our mutual agreement regarding modifications to
       your current appointment as a Teaching Associate with the University of
       Washington School of Social Work. As you and I discussed, most recently
       on December 15, 2009, these modifications will take effect on January 4,
       2010. It is agreed and understood that your appointment with the School
       of Social Work will end no later than June 30, 2010, subject to satisfactory
       performance, and it will not be renewed.

Associate Dean Spearmon requested Satterwhite sign the letter "to signify your

voluntary agreement with all of the above terms." On January 28, 2010, Satterwhite

signed and returned the letter.
No. 68763-8-1/7


       After Satterwhite's appointment ended in 2010, the CWTAP hired an African

American woman to fill the Teaching Associate position.

       On January 31, 2011, Satterwhite filed a lawsuit against the UW alleging

discrimination, hostile work environment, wrongful discharge, retaliation, negligent

infliction of emotional distress, negligent hiring, negligent retention, negligent

supervision, intentional infliction of emotional distress, assault, and battery.

       After the UW received responses to interrogatories and requests for production,

the UW attorney sent an e-mail to Satterwhite's attorney Thaddeus P. Martin. The UW

attorney asked Martin to dismiss the lawsuit because "this case is frivolous and

advanced without reasonable cause." The e-mail pointed out that Satterwhite expressly

agreed to "modifications to his job and to the termination of his appointment," and his

race discrimination claim was "factually unsupportable." The UW attorney also noted

that Satterwhite admitted "in his discovery responses that he did not engage in any

protected activity, that he was not assaulted or subject to battery by any University

employee." The e-mail states that "should we need to depose the Plaintiff, I intend to

thereafter file a motion for summary judgment and seek recovery of the University's fees

and costs."


       Satterwhite agreed to dismiss the claims for intentional infliction of emotional

distress, assault, and battery with prejudice. On May 17, the parties filed an agreed

order of dismissal of those claims. Satterwhite did not agree to dismiss the other

claims.

       The UW deposed Satterwhite. Satterwhite testified that he was discriminated

against based on race and gender. Satterwhite said, "I was a male in -- the only male,
No. 68763-8-1/8


actually, in this female situation. I had brought those concerns to Ms. Hetherington on

numerous occasions." Satterwhite testified, "I would say, You guys can talk because

you can relate, you can say things that I can't relate to. I can't be a part of the

conversation, because if I say something, it might be construed that I'm being

inappropriate." Satterwhite also testified that at one training event, a coworker made an

offensive racial comment about him. "We were at someplace over by the UW .... Who

was that that was saying, Well, you know how y'all black men are. I didn't say anything

     But I took offense to that."


       Satterwhite testified that Associate Dean Spearmon told him he would not lose

his job and that "[t]his is low level." Satterwhite said that when he received the letter, he

tried to get in touch with Associate Dean Spearmon and Hetherington "to try to find out

what was going on." Satterwhite testified that he "did not know that I was actually losing

my job until I got [the] letter" from Associate Dean Spearmon. Satterwhite also testified

that he signed the agreement under duress.

               Q      If you are saying that you had not discussed these issues
       before receiving the letter with [Associate Dean Spearmon] or
       [Hetherington], why would you sign the letter?
               A      I needed a job, and it was signed under duress. I needed a
       job. I did not have a job.

       During her deposition, Director Hetherington testified that she suggested

transferring Satterwhite to the six-month nonrenewable position "[b]ecause I wanted him

to have a job." Hetherington said that the new position was based on McRae's

allegations that "she felt sexually harassed" by Satterwhite.

       Associate Dean Spearmon testified that she had no issues with Satterwhite's

performance as an instructor. Associate Dean Spearmon said that Satterwhite was




                                              8
No. 68763-8-1/9


removed from his position because McRae "reported feeling sexually harassed."

       The UW filed a motion for summary judgment dismissal of the discrimination,

hostile work environment, retaliation, wrongful discharge, and negligence claims. The

UW argued Satterwhite could not establish a prima facie case of race or gender

discrimination because "there is no evidence that the University's legitimate reason for

not renewing his appointment—inappropriate conduct with a University student—was a

pretext for discrimination." The UW also argued there was no evidence Satterwhite was

subjected to a hostile work environment. The UW submitted a number of declarations

in support of summary judgment, including the declaration of Director Hetherington,

McRae, Associate Dean Spearmon, and Dean Uehara.

       In his response to the summary judgment motion, Satterwhite agreed to dismiss

the negligence claims but opposed dismissal of his discrimination and wrongful

discharge claims. Satterwhite asserted the evidence established a prima facie case of

race and gender discrimination, hostile work environment, and wrongful discharge.

Satterwhite submitted excerpts from his deposition and the depositions of Director

Hetherington, Associate Dean Spearmon, and Dean Uehara.

       The court granted the motion for summary judgment dismissal of the claims with

prejudice. As to the discrimination claims, the court concluded Satterwhite did not

present any evidence of pretext. In the oral ruling, the court states, in pertinent part:

       Even if the prima facie case was made out by the plaintiff, which the Court
       believes it was not done, there is no evidence that the university's actions
       taken or explanations given, were pretextual. It appears from the
       evidence that the university's acts were based upon legitimate
       considerations that were not motivated in any way by racial or gender
       discrimination.
No. 68763-8-1/10


       As to the hostile work environment claim, the court acknowledged Satterwhite

presented evidence of offensive remarks but concluded "it certainly didn't amount to

what's required to constitute a hostile work environment."

       The court ruled that "considering all the evidence" presented at summary

judgment, the claims "appear to be frivolous." On March 9, 2012, the court entered an

order granting the motion for summary judgment and dismissing the lawsuit against the

UW with prejudice.

       Approximately one month later, the UW filed a motion for an award of attorney

fees and costs against Satterwhite and his attorney under CR 11 and RCW 4.84.185.

The UW requested all of the attorney fees and costs incurred from the date of filing the

complaint through the date for the summary judgment motion, totaling $73,609 in

attorney fees and $4,609.25 in costs.

       Except for deducting $750 related to "excess and apparent duplication," the court

awarded all of the attorney fees and costs requested by the UW under CR 11 and RCW

4.84.185. The court ordered Satterwhite and his attorney to pay a total of $78,968.25

as "the reasonable fees and costs incurred by the Defendant University of Washington

in defending this suit."3




       3The order states, in pertinent part:
       The fees and costs are calculated as follows:
               Fees Through April 6, 2012 —                   $73,609.00
                      deduct some excess and apparent
                      duplication —                               750.00
                                Subtotal                      $72,859.00
                        Costs                                   4.609.25
                                                              $77,468.25
               Fees related to Defendant's Reply Memorandum
                        re Attorneys' fees                     $1.500.00
                                Total Fees and Costs          $78,968.25


                                                  10
No. 68763-8-1/11


        The court entered a judgment of $78,968.25 against Satterwhite and Martin

jointly and severally for "the sum of the reasonable number of hours expended by the

University in defending against this frivolous action at reasonable hourly rates, plus

necessary costs."

                                               ANALYSIS


        Satterwhite and Martin contend the court erred in awarding attorney fees and

costs under CR 11 and RCW 4.84.185 and in entering the judgment for $78,968.25.

Satterwhite and Martin contend the court abused its discretion by failing to enter

findings identifying the sanctionable conduct, and concluding the discrimination claims

lacked a factual or legal basis and were advanced without reasonable cause.4

Satterwhite also contends the court did not limit the amount of fees awarded to the

amount reasonably expended in responding to sanctionable conduct under CR 11.

CR 11 Sanctions

        The decision to impose sanctions under CR 11 is within the sound discretion of

the trial court. State ex rel. Quick-Ruben v. Verharen, 136 Wn.2d 888, 903, 969 P.2d

64 (1998). A court abuses its discretion if its decision is manifestly unreasonable or

based on untenable grounds. MacDonald v. Korum Ford, 80 Wn. App. 877, 884, 912

P.2d 1052 (1996). Applying the wrong legal standard is an abuse of discretion. Mayer

v. Sto Indus.. Inc.. 156 Wn.2d 677, 684, 132 P.3d 115 (2006).

        "The purpose behind CR 11 is to deter baseless filings and curb abuses of the

judicial system." Bryant v. Joseph Tree. Inc., 119 Wn.2d 210, 219, 829 P.2d 1099

(1992). "CR 11 is not meant to act as a fee shifting mechanism, but rather as a

        4While Satterwhite assigned errorto the trial court findings that alt of Satterwhite's claims were
frivolous and brought without reasonable inquiry, Satterwhite addresses only the discrimination and
wrongful discharge claims.


                                                     11
No. 68763-8-1/12


deterrent to frivolous pleadings." Korum Ford. 80 Wn. App. at 891. Civil Rule 11

addresses two types of problems: (1) filings that are not grounded in fact and warranted

by law and (2) filings interposed for an improper purpose. Bryant, 119 Wn.2d at 217.5

Because CR 11 sanctions may have a chilling effect, the court should impose CR 11

sanctions "only when it is patently clear that a claim has absolutely no chance of

success." Skimming v. Boxer, 119 Wn. App. 748, 755, 82 P.3d 707 (2004).

       Preliminarily, Satterwhite and Martin assert the court erred in failing to identify the

sanctionable conduct. The record does not support their assertion. The record shows

thatthecourtcomplied with the reguirements of Biggs v. Vail. 124 Wn.2d 193, 876 P.2d

448 (1994) (Biggs II), by identifying the sanctionable conduct by finding that the claims

were not grounded in fact or law. In Biggs II. the Court held, in pertinent part:

       [l]n imposing CR 11 sanctions, it is incumbent upon the court to specify
       the sanctionable conduct in its order. The court must make a finding that
       either the claim is not grounded in fact or law and the attorney or party
       failed to make a reasonable inquiry into the law or facts, or the paper was
       filed for an improper purpose.

Biggs II. 124 Wn.2d at 201.




       5CR 11(a) provides, in pertinent part:
       Every pleading, motion, and legal memorandum of a party represented by an attorney
       shall be dated and signed .... The signature of... an attorney constitutes a certificate
       by the . . . attorney that the party or attorney has read the pleading, motion, or legal
       memorandum, and that to the best of the party's or attorney's knowledge, information,
       and belief, formed after an inquiry reasonable under the circumstances: (1) it is well
       grounded in fact; (2) it is warranted by existing law or a good faith argument for the
       extension, modification, or reversal of existing law or the establishment of new law; (3) it
       is not interposed for any improper purpose, such as to harass or to cause unnecessary
       delay or needless increase in the cost of litigation.


                                                    12
No. 68763-8-1/13


       Satterwhite and Martin contend the court abused its discretion in finding the

discrimination claims were not grounded in fact and law when the complaint was filed.6

We agree.

       A court may not impose CR 11 sanctions for filing baseless claims unless it "finds

that the attorney who signed and filed the complaint failed to conduct a reasonable

inguirv into the factual and legal bases ofthe claim." Bryant, 119Wn.2d at 220.7 In
making that determination, we use an objective standard to determine whether "a

reasonable attorney in like circumstances could believe his or her actions to be factually

and legally justified." Bryant, 119 Wn.2d at 220. The court must also consider "the

need for discovery to develop factual circumstances underlying a claim." Bryant. 119

Wn.2d at 220-21.8 Courts should be "reluctant to impose sanctions . . . before there has

been an opportunity for discovery" because the notice pleading rule "contemplates that

discovery will provide parties with the opportunity to learn more detailed information

about the nature of a complaint." Bryant, 119 Wn.2d at 222. The fact that a complaint

"does not prevail on its merits is by no means dispositive of the question of CR 11

sanctions." Bryant. 119 Wn.2d at 220. "To avoid being swayed by the benefit of

hindsight, the trial court should impose sanctions only when it is 'patently clear that a

claim has absolutely no chance of success.'" Korum Ford, 80 Wn. App. at 884 (quoting

Oliveri v. Thompson. 803 F.2d 1265, 1275 (2nd Cir.1986)).



       6The order states, in pertinent part:
               1.       Plaintiff Holsey Satterwhite's claims in this case were not grounded in
       fact or law, are frivolous, and were advanced without reasonable cause under RCW
       4.84.185;
               2.       Plaintiff's counsel Thaddeus Martin failed to make a reasonable inquiry
       into the law and facts with respect to Plaintiffs claims in this case as required by CR 11.
       7(Emphasis in original.)
       8(Citation omitted.)

                                                    13
No. 68763-8-1/14


        In the complaint, Satterwhite alleged race and gender discrimination in violation

of the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW. A plaintiff

may allege discrimination based on both race and gender. See e.g., Harris v. Maricopa

County Superior Court. 631 F.3d 963, 976-77 (9th Cir. 2011) (African American man's

claim that "false sexual harassment allegations were made against him and that action

was taken on these false charges because of the combination of his race and gender"

was "perfectly plausible.").9
        "The burden of establishing a prima facie case of disparate treatment is not

onerous." Texas Dep't of Cmtv. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089,

67 L. Ed. 2d 207 (1981). "The 'requisite degree of proof necessary to establish a prima

facie case ... is minimal and does not even need to rise to the level of a preponderance

of the evidence.'" Fulton v. Dep't of Social & Health Svcs.. 169 Wn. App. 137, 152,279

P.3d 500 (2012)10 (quoting Wallisv. J.R. SimplotCo., 26 F.3d 885, 889 (9th Cir.1994)).
        To establish a prima facie case of discrimination, Satterwhite must show (1) he

belongs to a protected class, (2) he was treated less favorably in the terms or conditions

of his employment than similarly situated employees, and (3) he engaged in

substantially similar work as nonprotected class employees. Domingo v. Boeing Emps.'

Credit Union. 124Wn. App. 71, 81, 98 P.3d 1222 (2004).11



        9 Because WLAD is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000a,
Washington courts rely on federal decisions interpreting Title VII to decide issues under WLAD. See e.g.
Oliver v. Pac. Nw. Bell Tel. Co.. 106 Wn.2d 675, 678, 724 P.2d 1003 (1986): Haubrv v. Snow. 106 Wn.
App. 666, 674 n.7, 31 P.3d 1186 (2001).
        10 (Alteration in original) (emphasis in original).
        11 The elements for a prima facie case are not absolute but vary based on the relevant facts.
Texas Dep't of Cmtv. Affairs v. Burdine. 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L Ed. 2d 207 (1981);
McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973);
Grlmwood v. Univ. of Puget Sound. Inc.. 110 Wn.2d 355, 363, 753 P.2d 517 (1988).


                                                    14
No. 68763-8-1/15



       To establish a prima facie case of hostile work environment, Satterwhite had the

burden of showing (1) the harassment was unwelcome, (2) the harassment was

because of his race or gender, (3) the harassment affected the terms or conditions of

employment, and (4) the harassment is imputed to the employer. Estevez v. Faculty

Club of the Univ. of Wash.. 129 Wn. App. 774, 794, 120 P.3d 579 (2005). To meet the

third hostile work environment element, Satterwhite must establish that the harassment

was "sufficiently pervasive so as to alter the conditions of employment and create an

abusive working environment." Glasgow v. Georgia-Pac. Corp.. 103 Wn.2d 401, 406,

693 P.2d 708 (1985).

       Once the plaintiff presents a prima facie case, a presumption of discrimination

exists and the employer must produce evidence of legitimate, nondiscriminatory

reasons for its actions. Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 363-

64, 753 P.2d 517 (1988). If the defense meets this burden, the plaintiff must show that

the employer's stated reasons are pretextual. Hill v. BCTI Income Fund-I, 144 Wn.2d

172, 182, 23 P.3d 440 (2001). overruled on other grounds by McClartv v. Totem Elec.

157 Wn.2d 214, 137 P.3d 844 (2006).

       In order to show that an employer's stated rationale for an employment decision

was pretextual, in other words, "unworthy of belief," the plaintiff must produce evidence

from which a trier of fact could infer that the employer's "articulated reasons" for the

employment decision "(1) have no basis in fact, (2) were not really motivating factors for

the decision, or (3) were not motivating factors in employment decisions for other

employees in the same circumstances." Kirbv v. City of Tacoma, 124 Wn. App. 454,

467, 98 P.3d 827 (2004). It is well established that a plaintiff need not "produce 'direct




                                             15
No. 68763-8-1/16


evidence of discriminatory intent.'" Hill, 144 Wn.2d at 179 (quoting U.S. Postal Serv.

Bd. of Governors v. Aikens. 460 U.S. 711, 714 n.3. 103 S. Ct. 1478, 75 L. Ed. 2d 403

(1983)). " 'Circumstantial, indirect and inferential evidence will suffice to discharge the

plaintiffs burden.'" HiH, 144 Wn.2d at 179-80 (quoting Sellsted v. Wash. Mut. Sav.

Bank. 69 Wn. App. 852, 860, 851 P.2d 716 (1993)).12
        The record establishes a factual and legal basis to file the discrimination claims.

Satterwhite is African American and was the only male in the CWTAP. Satterwhite

testified that he was treated differently based on both race and gender. Satterwhite

testified that Hetherington and the CWTAP Associate Director scrutinized his work more

closely than the white female who held the same position as Satterwhite. Satterwhite

also testified that he was treated differently by Associate Dean Spearmon and Dean

Uehara in evaluating the allegations of McRae because of his race and gender. In

addition, Satterwhite testified that he was discriminated against by his coworkers, with

one of his coworkers making the comment, "[Y]ou know how y'all black men are."

        Further, while the UW argues that Satterwhite's resignation was voluntary, the

presumption that resignation is voluntary can be rebutted "by showing the resignation

was prompted by duress or an employer's oppressive actions." Townsend v. Walla

Walla Sch. Dist. 147 Wn. App. 620, 627-28, 196 P.3d 748 (2008). Satterwhite testified

that he did not know that he would lose his job until he received the letter from

Associate Dean Spearmon and that he signed the agreement under duress.




        12 We note that pretext is typically a question offact. Fell v. Spokane Transit Auth.. 128Wn.2d
618, 643, 644, 911 P.2d 1319 (1996) {reversing summary judgment, noting pretext is usually a question
of fact and that on remand, plaintiffs "will have the opportunity ... to conduct appropriate discovery" to
prove pretext).


                                                     16
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        We conclude that when Satterwhite filed his lawsuit it was reasonable to believe

he had meritorious claims for discrimination and unlawful discharge. But in opposition

to summary judgment dismissal of his discrimination claims, Satterwhite presented no

evidence to rebut the legitimate nondiscriminatory reasons presented by the UW.13 On
remand, the court should determine whether at some point following discovery and

before summary judgment Satterwhite and Martin knew or should have known that the

facts and law did not justify continuing to pursue these claims.

        Where the CR 11 " 'sanctions imposed are substantial in amount, type, or effect,

appellate review of such awards will be inherently more rigorous; such sanctions must

be quantifiable with some precision.'" Korum Ford, 80 Wn. App. at 892 (quoting

Thomas v. Capital Sec. Servs.. Inc.. 836 F.2d 866, 883 (5th Cir. 1988)). Under CR 11,

the court must limit an award of attorney fees to" 'the amounts reasonably expended in

responding to the sanctionable filings.'" Korum Ford, 80 Wn. App. at 891 (quoting

Biggs II, 124 Wn.2d at 201). The court should also impose the least severe sanction

necessary. Miller v. Badglev, 51 Wn. App. 285, 303-04, 753 P.2d 530 (1988). CR 11

should not be used as a fee shifting mechanism. Bryant, 119 Wn.2d at 220. In

addition, where a party voluntarily dismisses a baseless claim, "such corrective action

should be used to mitigate the amount of sanction imposed." Biggs II, 124 Wn.2d at

199-200.




        13 The UW argues that Satterwhite presented no evidence to rebut the same actor inference. Hi!
144 Wn.2d at 189 (emphasis in original) (noting that when an employee 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 hiring").
Satterwhite's failure to overcome an inference at summary judgment is not dispositive of whether the
court properly imposed sanctions for filing the claim.


                                                     17
No. 68763-8-1/18


        The award of attorney fees and costs in this case is not limited to the least

severe sanction necessary and is not limited to the amounts reasonably expended in

responding to sanctionable conduct. Except for $750 of the amount the UW requested,

the court awarded all of the attorney fees and costs incurred by the UW, totaling

$78,968.25. On remand, the court shall determine the amount of fees reasonably

expended, taking into consideration dismissal of claims and the least severe sanction.

RCW 4.84.185


        Satterwhite and Martin contend the court erred in imposing sanctions under RCW

4.84.185 because the discrimination and wrongful discharge claims were not frivolous.14
        RCW 4.84.185 allows for recovery of attorney fees and costs by the prevailing

party where the lawsuit is found to be "frivolous."15 Generally, a lawsuit or an appeal is
frivolous when it cannot be supported by any rational argument on the law or facts, or

" 'if there are no debatable issues upon which reasonable minds might differ and it is . . .

totally devoid of merit.'" Quick-Ruben. 136 Wn.2d at 905 (quoting Presidential Estates

Apartment Assocs. v. Barrett. 129 Wn.2d 320, 330, 917 P.2d 100(1996)). Under RCW

4.84.185, "[t]he lawsuit, as a whole, that is in its entirety, must be determined to be

frivolous and to have been advanced without reasonable cause." Biggs v. Vail, 119

Wn.2d 129, 137, 830 P.2d 350 (1992). Because the discrimination and wrongful


        14 Satterwhite and Martin also argue that the court may not award fees under RCW 4.84.185
unless the lawsuit was frivolous and "interposed for purposes of delay, nuisance, spite, or harassment."
The text of the statute contains no such requirement. Highland Sch. Dist. No. 203 v. Racy. 149 Wn. App.
307, 311, 202 P.3d 1024 (2009) (acknowledging legislative history but holding, "Nothing in the statute
requires a court to find that the action was brought in bad faith or for purposes of delay or harassment").
        15 RCW 4.84.185 provides, in pertinent part:
        [U]pon written findings by the judge that the action, counterclaim, cross-claim, third party
        claim, or defense was frivolous and advanced without reasonable cause, [the court may]
        require the nonprevailing party to pay the prevailing party the reasonable expenses,
        including fees of attorneys, incurred in opposing such action, counterclaim, cross-claim,
        third party claim, or defense.


                                                    18
No. 68763-8-1/19


discharge claims were not "frivolous and advanced without reasonable cause," the court

abused its discretion in awarding attorney fees and costs under RCW 4.84.185.

        We vacate the judgment and remand to reconsider the award of attorney fees

and costs under CR 11.16




                                                                   ijWali2iv
WE CONCUR:




                                                                     &X,J-




        16 We deny the UWs request for fees under RAP 18.9(a). Satterwhite's appeal is not frivolous
because it presents issues upon which reasonable minds might differ. Reid v. Dalton. 124 Wn. App. 113,
128, 100 P.3d 349 (2004) (quoting Fay v. Nw. Airlines. Inc., 115Wn.2d 194,200-01, 796 P.2d 412
(1990)) (" 'An appeal is frivolous if there are no debatable issues upon which reasonable minds might
differ and it is so totally devoid of merit that there was no reasonable possibility of reversal.'")


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