    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


CITY OF STANWOOD,                               NO. 73195-5-1                                   o
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                    Respondent,                                                      c_

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WARREN E. BOHON,                                UNPUBLISHED OPINION
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                    Appellant.                  FILED: June 13, 2016


      Verellen, C.J. —Warren Bohon appeals from the summary judgment order

dismissing his claims against his former employer, the City of Stanwood. He argues

that summary judgment was improper because (1) the City failed to provide timely

notice of the summary judgment hearing, (2) the trial court rejected his summary

judgment materials without considering the Burnet factors and denied his motion for a

continuance, (3) the trial court relied on unsigned affidavits and should have considered

his entire deposition testimony, and (4) there were material questions of fact precluding

summary judgment. We affirm.
No. 73195-5-1/2


                                         FACTS1

       In 1992, the City of Stanwood hired Warren Bohon at the age of 59 to work as a

part-time code enforcement officer in the Community Development Department.

Eventually, Bohon worked as a building inspector.

       During Bohon's tenure with the City, he claimed that he "blew the whistle" on

corruption in his department. In particular, he disagreed with the City's decision to hire

Les Anderson, the Public Works Director, and Bill Beckman, the City Administrator, and

claimed those decisions were based on corruption.

       In 2001, Stephanie Cleveland Hansen was hired as the Community Development

Director and became Bohon's immediate supervisor.

       Four years later, in November 2005, Hansen directed Bohon to move his office

from the Public Works Department building, known as the "Lagoon Building," to City

Hall, where she and the rest of Bohon's department worked.

       Bohon refused. On December 1, he sent a memorandum to Hansen and,

although she had not yet assumed office, newly elected Mayor Dianne White. The

memorandum was entitled "[relocation of office of Warren Bohon" and included

Bohon's statement that he was "claiming all the protections afforded a

'WHISTLEBLOWER' provided in Federal, State and City laws." Clerk's Papers (CP) at

139. Bohon described his belief that Beckman "unduly influenced" Mayor Kuhnley for a

promotion and that he was unqualified. He described how he had organized a meeting




       1 Bohon's recitation of facts includes citations to documents appended to his
opening brief, but not included in our appellate record. Our discussion of the facts is
limited to the record on appeal of the evidence before the trial court on summary
judgment.
No. 73195-5-1/3


for "City employees to present our objections to continuing the Abuses of Authority' and

the [gjross waste of Public Funds [] that inherently would associate with such an act by

the Mayor." CP at 139. Finally, he claimed that a different employee, Les Anderson,

"took steps" to force his move to City Hall after Bohon refused to let him use his office

chair. CP at 140.


       On December 7, 2005, Mayor Herb Kuhnly directed Bohon in writing to move his

office by December 12 or face disciplinary action. Mayor Kuhnly indicated that the City

would provide assistance if Bohon had any physical limitations. Again, Bohon refused.

       On the day Bohon was required to report to his new office, he called in sick and

failed to appear for scheduled building inspections. He later requested that Hansen

sign several leave forms and submitted a handwritten memorandum explaining his

vacation request.

       On December 13, Bohon wrote another letter to Hansen and Mayor White.

White still had not assumed office. Bohon alleged that he was "seeking protection

against retaliation for reporting improper governmental action." CP at 145. He

continued, "Stephanie, you are aware of my age. It is important that you, as an involved

party, ensure that Mayor Kuhnly and Bill Beckman are aware of it. To terminate a

person of my age is the severest act an employer can do to an employee. If the City of

Stanwood proceeds to terminate my employment I will be fully justified in seeking the

severest of penalties to be assessed against all relevant parties." CP at 147. Bohon

concluded that for "the City to disturb or relocate my office during the time I am away

and/or to terminate my employment given the existing circumstances will be further

proof of illegal, pretextual acts done in BAD FAITH." CP at 148.



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No. 73195-5-1/4


       On December 20, 2005, Hansen recommended the Mayor terminate Bohon's

employment. Hansen cited violations of the personnel policy manual as grounds for the

disciplinary action, including:

       9.1.6 Loitering after completing day's work, which results in the disruption
              of the City's business or the work efforts of other employees.
       9.1.10 Making malicious, false, or derogatory statements that are intended
              or could reasonably be expected to damage the integrity or
              reputation of the city or our employees, on or off premises.
       9.1.11 Insubordination, including a refusal or failure to perform assigned
              work.


CP at 161. Hansen stated that "[mjost recently [Bohon] has refused to relocate his work

space to City Hall per both my and the Mayor's direct orders." CP at 161.

       On January 9, 2006, Mayor White, now in office, presided over Bohon's pre-

termination hearing. At the hearing, Bohon focused on his disagreement with the City's

hiring decisions over the years. Specifically, his concerns were based on his belief that

Anderson and Beckman were not qualified for their jobs. But Bohon admitted that he

refused to move his work space to City Hall because he believed his current space was

more efficient.


       Mayor White asked if Bohon would also refuse her order to move his office.

According to Mayor White, Bohon stated that "he would continue to resist any directive

to move and work at City Hall, even if it came from me, the current Mayor of the City."

CP at 349. In his later deposition, Bohon similarly recalled the interaction:

       Somebody in there asked me, "Who do you think has the authority to"—
       I'm paraphrasing it now. I can't—I'm not saying this is verbatim what I
       said or what they said, but somebody asked me who I thought had the
       authority to tell me to move my office, and I believe I pointed to her,
       Dianne White, and said, "Well, I believe she does," or whatever. But they
       don't have my opinion of—this wasn't on the record then—but my opinion
       is she did not have the authority at that time. None of them had the

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No. 73195-5-1/5


       authority because they had abused their oath of office in a felony situation
       and they had forfeited their right."

CPat108.


       On January 13, 2006, Mayor White notified Bohon that the City was terminating

his employment. Mayor White explained that each of the reasons cited in Hansen's

letter could serve as a basis for termination. But she identified Bohon's refusal to move

his office as the critical factor:

       While any one of the reasons cited for your termination standing alone is a
       sufficient basis to take this action, the fact that you were repeatedly given
       a clear directive to move your office and yet willfully refused to do so and
       even continued to resist that directive during the pre-termination hearing,
       convinces me that your continued employment is not in the city's best
       interest.


CPat164.

       Bohon was 72 at the time he was fired. The City hired Jeff Foss, 56, to replace

him.


       In 2007, Bohon, acting on his own behalf, sued the City in federal district court.

Bohon voluntarily dismissed his claims without prejudice.

       In 2009, Bohon, refiled his claim in Snohomish County Superior Court. His

complaint alleged age discrimination, wrongful discharge, disparate treatment, unlawful

harassment, willful withholding of wages, negligent and intentional infliction of emotional

distress, and breach of contract.

       In 2010 and 2013, the court ordered Bohon to show cause as to why his case

should not be dismissed for failure to prosecute. In each case, Bohon retained

attorneys to argue against dismissal.




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        The parties eventually set a trial date in December 2013, but this date was

continued to March 2014 due to scheduling problems. Bohon then asked for additional

time to prepare and the parties jointly requested a continuance. The court set the new

trial date for February 2, 2015.

        Over the following year, the City attempted to clarify whether Bohon had retained

counsel, reminded him several times of the upcoming trial, and informed him it intended

to move for summary judgment. For instance, on October 7, 2014, the City wrote:

               As I have indicated for some time now, the City plans to file a
        motion for summary judgment in this matter. Enclosed please find a Note
        for Motion setting the hearing on the motion for Tuesday, November 25,
        2014 in Snohomish County Superior Court. I am sending this to you
        nearly two months in advance of the hearing to give you plenty of time to
        plan for it. The City will file its motion later this month in accordance with
        the civil rules.


CP at 300-01.


        Due to scheduling conflicts, the City later notified Bohon that it was striking the

November motion and would re-note the motion before trial in February.

        On December 19, 2014, the City filed its motion for summary judgment and

scheduled the hearing for January 16, 2015. That day, the City mailed copies of the

motion to Bohon's Camano Island address. United States Postal Service tracking

information indicates that the package was left on Bohon's front porch on December 20,

2014.


        The City also e-mailed Bohon the summary judgment materials at the address he

had used to correspond with the City throughout the litigation.




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        In addition, the City attempted to personally serve Bohon by legal messenger at

his Camano Island home. The messenger was unable to locate Bohon at home and

made additional unsuccessful service attempts on December 20, 21, 22, and 26.

        On January 15, Bohon called the court to request a continuance due to illness.

The court continued the hearing to February 5, 2015.

        On January 26, the City wrote Bohon to advise him of the continuances and

stated that "[y]ou already have copies of the City's Motion for Summary Judgment and

related pleadings, which were served on you on December 19, 2014." CP at 480.

Bohon did not respond.

        On January 27, Bohon contacted the City's attorney to confirm that the hearing

would proceed on February 5.

        On February 5, Bohon claims to have appeared at the hearing with a box of

documents he believes would have defeated summary judgment. The documents were

never filed. The court denied Bohon's motion to continue the matter and granted

summary judgment for the City.

        Bohon appeals.

                                        ANALYSIS
        Timeliness of Service

        Bohon claims he was not timely served with the City's summary judgment

materials before the hearing. The City argues that Bohon waived this issue by not

raising it below and, even considering the claim, service was proper. We agree with the

City.

        It is undisputed that Bohon did not raise the sufficiency of service below, and he

makes no argument as to why he should be entitled to raise the issue for the first time

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No. 73195-5-1/8


on appeal. Thus, we need not consider it here. See RAP 2.5(a): State v. McFarland.

127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995) ("As a general rule, appellate courts will

not consider issues raised for the first time on appeal.").

       Even so, however, the record is clear that Bohon was properly served. Under

CR 5(b)(2)(A), service by mailing is considered complete three days after being placed

in the mail:


       [Service] shall be deemed complete upon the third day following the day
       upon which they are placed in the mail, unless the third day falls on a
       Saturday, Sunday or legal holiday, in which event service shall be deemed
       complete on the first day other than a Saturday, Sunday, or legal holiday,
       following the third day.

"The motion and any supporting affidavits, memoranda of law, or other documentation

shall be filed and served not later than 28 calendar days before the hearing." CR 56(c).

       Once mailed, a rebuttable presumption attaches that the document has been

received by the addressee in the usual time. Neuson v. Macv's Dep't Stores Inc., 160

Wn. App. 786, 793, 249 P.3d 1054 (2011). To invoke the presumption of receipt under

the common law mailbox rule, proof of mailing must be shown. Olson v. The Bon, Inc.,

144 Wn. App. 627, 634, 183 P.3d 359 (2008). Proof may include a dated receipt or

other evidence of mailing. Olson, 144 Wn. App. at 634.

       The record shows that the summary judgement materials were placed in the mail

on December 19, 2014, and delivered to Bohon's front porch the following day. Bohon

claims the fact that the City's legal messenger service was unable to also deliver the

materials—noting there was "[n]o answer at door, no noise inside, no movement inside

and no lights"—rebuts the presumption that he received the mailing. CP at 36. It does




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No. 73195-5-1/9


not. The fact that Bohon did not respond to a legal messenger attempting personal

service does not prove he did not receive his mail.2

        Bohon argues that even assuming delivery under CR 5(b)(2), the presumed

delivery date would be December 22, less than the required notice of 28 days. But

Bohon calculates the notice based on the original January 16 hearing date. In fact, the

hearing was not held until February 5. Calculation of CR 56 notice applies to the date

on which the hearing actually occurred. Cole v. Red Lion. 92 Wn. App. 743, 749, 969

P.2d 481 (1998). Indeed, the summary judgment materials were served on Bohon more

than 28 days before the summary judgment hearing.

        Failure to Consider Burnet3 Factors

        Bohon next contends that the trial court failed to consider the Burnet factors

before rejecting his summary judgment materials. He states he "asked the trial court to

accept that evidence or in the alternative to accept it and grant a continuance to allow

such materials to have been deemed timely filed." Br. of Appellant at 24.

        In general, a trial court's failure to consider the Burnet factors before excluding

untimely filed declarations and materials opposing summary judgment is an abuse of

discretion. Keck v. Collins. 184 Wn.2d 358, 357 P.3d 1080 (2015). But here, the record




        2 Bohon improperly supports his factual arguments on this issue by citation to
materials included in the appendix to his briefing. The appendix materials are not in our
appellate record and thus not properly before us on appeal. We do not consider them
here.
        3 In Burnet v. Spokane Ambulance. 131 Wn.2d 484, 494, 933 P.2d 1036 (1997),
our Supreme Court held that the trial court must consider certain factors on the record
before imposing one of the "harsher" remedies under the discovery rules, including
whether a lesser sanction would suffice.

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No. 73195-5-1/10


does not show that Bohon filed or otherwise called the court's attention to the specific

materials he now claims were improperly excluded.

       An appellant bears the burden of complying with the Rules of Appellate

Procedure and perfecting the record on appeal so that we have before us all the

evidence necessary to decide an issue. Rhinevault v. Rhinevault. 91 Wn. App. 688,

692, 959 P.2d 687 (1998). We "may decline to reach the merits of an issue if this

burden is not met." Rhinevault, 91 Wn. App. at 692. Specifically, RAP 9.12 requires

that Bohon provide an official appellate record of all documents called to the attention of

the trial court on summary judgment.

       Bohon provides no verbatim report of the summary judgment hearing,4 and

nothing in the record indicates Bohon offered summary judgment materials to the trial

court. Nor does the record indicate the court excluded documents without consideration

of the Burnet factors. The record reflects only that a summary judgment hearing was

held on February 5, the court granted summary judgment for the City, and denied

Bohon's motion for a continuance. We conclude that the record does not support

Bohon's claim.


       In regard to Bohon's motion for a continuance, the minute entry for the summary

judgment hearing states only that "[pjlaintiff's motion for continuance: denied. The court

finds this motion was not timely noted on the calendar." CP at 474. We review the

denial of a motion for a continuance for a manifest abuse of discretion. In re

Dependency of V.R.R.. 134 Wn. App. 573, 580-81, 141 P.3d 85 (2006). On this record,




      4 If no verbatim report of proceedings was available, Bohon was authorized to file
a narrative report of proceedings under RAP 9.3.
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No. 73195-5-1/11


Bohon does not establish that the court abused its discretion by denying Bohon's

motion for his failure to timely note the motion.

       Summary Judgment

       Bohon contends that considering all facts and inferences in a light most favorable

to him, summary judgment was improper. We disagree.

       We review summary judgment orders de novo, considering the evidence and all

reasonable inferences in the light most favorable to the nonmoving party, in this case

Bohon. Keck. 184 Wn.2d at 370. "Summary judgment is appropriate only when no

genuine issue exists as to any material fact and the moving party is entitled to judgment

as a matter of law." Keck, 184 Wn.2d at 370.

       At the outset, Bohon contends that the trial court improperly relied on two

unsigned declarations submitted by the City—one from Mayor Dianne White and

another from Bohon's former supervisor, Stephanie Hansen—in support of its motion for

summary judgment. Yet Bohon cites no legal authority and provides no meaningful

analysis of this issue. We do not consider arguments unsupported by citations to legal

authority. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801,

809, 828 P.2d 549 (1992). Furthermore, because Bohon failed to object to the affidavits

or bring a motion to strike below, he waives any objection to the deficiency in the

affidavit on appeal. Podbielancik v. LPP Mortq. Ltd.. 191 Wn. App. 662, 666, 362 P.3d

1287 (2015) ("If a party fails to object to an affidavit or bring a motion to strike improper

portions of an affidavit, any error is waived.").

       Bohon contends that the trial court should have considered his entire deposition

rather than the excerpts provided by the City. He argues he "wished to introduce other



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No. 73195-5-1/12


portions of his transcript." Br. of Appellant at 31. Again, the record does not support

this claim. Under ER 106,

       When a writing or recorded statement or part thereof is introduced by a
       party, an adverse party may require the party at that time to introduce any
       other part, or any other writing or recorded statement, which ought in
       fairness to be considered contemporaneously with it."

Likewise, under CR 32(a)(4), a party offering deposition excerpts may be required to

introduce other portions of the deposition if they should "in fairness" "be considered with

the part introduced." Bohon cites nothing in the record, and our review reveals nothing

to suggest he moved under ER 106, CR 32(a)(4), or any other authority to compel

introduction of other portions of his deposition testimony. His claim fails.

       We turn to the merits of Bohon's claim. Under the Washington Law Against

Discrimination, an employer may not take an adverse employment action against an

employee who is over the age of 40. Scrivener v. Clark College. 181 Wn.2d 439, 444,

334 P.3d 541 (2014); RCW 49.60.180(1). At trial, the plaintiff bears the ultimate burden

of showing that the protected characteristic was a significant motivating factor in the

employer's decision. Scrivener. 181 Wn.2d at 444. But to overcome summary

judgment, the plaintiff need only show the protected characteristic, in this case age, was

a substantial motivating factor in the adverse employment decision. Scrivener. 181

Wn.2d at 444.


      Where a plaintiff lacks direct evidence, we employ the burden-shifting analysis

described in McDonnell Douglass Corp. v. Green. 411 U.S. 792, 93 S. Ct. 1817, 36 L.

Ed. 2d 668 (1973). Under this approach, the "plaintiff bears the initial burden of

establishing a prima facie case of discrimination, which creates a presumption of

discrimination. Once the plaintiff establishes a prima facie case, the burden of


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No. 73195-5-1/13


production shifts to the employer to articulate a legitimate, nondiscriminatory reason for

the adverse employment action." Scrivener. 181 Wn.2d at 446 (citation omitted). If the

defendant satisfies this burden, the plaintiff must establish that the employer's claimed

nondiscriminatory reason is a pretext. Scrivener. 181 Wn.2d at 446.

       To satisfy the pretext prong, the plaintiff must offer sufficient evidence to create a

genuine issue of material fact showing either, (1) that the defendant's reason is

pretextual, or (2) that although the employer's stated reason is legitimate, discrimination

nevertheless was a substantial factor motivating the employer. Scrivener, 181 Wn.2d at

446-47.


       To establish a prima facie case for age discrimination sufficient to prevail on

summary judgment, Bohon must show he was (1) over 40, (2) discharged, (3) doing

satisfactory work, and (4) replaced by a significantly younger person. Becker v. Wash-

State Univ.. 165 Wn. App. 235, 252, 266 P.3d 893 (2011). The fourth factor merely

requires Bohon show he was replaced by someone significantly younger, not

necessarily that the replacement was outside the statutorily protected class. Griffith v.

Schnitzer Steel Indus.. Inc.. 128 Wn. App. 438, 446-47, 115 P.3d 1065 (2005).

       Bohon's core claim is that he was fired and replaced by younger worker, while

other younger workers who he claims committed "criminal and fraudulent acts" were not

terminated. See, e.g., Br. of Appellant at 41.

      Arguably, Bohon fails to establish a prima facie case because he identifies

nothing in the record demonstrating he was performing satisfactory work. See

Scrivener v. Clark College. 181 Wn.2d at 444. Without citation to the record, Bohon

argues he "received only positive performance evaluations during [his employment]."



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No. 73195-5-1/14



Br. of Appellant at 37. He claims it is undisputed "the City did not provide evidence of

any previous disciplinary actions against him or any unfavorable evaluations." Br. of

Appellant at 37. But it is Bohon's burden to provide at least some evidence to support

each element of a prima facie case for age discrimination. On the record before us, he

fails to do so.


       Even assuming Bohon established a prima facie case for age discrimination, he

fails to show the City's non-discriminatory basis for firing him was pretext.

       Our review of the record shows that Bohon was fired for insubordination related

to his repeated refusal to move his office. Bohon was not fired until he was given a full

opportunity to explain his position in a pretermination hearing presided over by the

newly elected Mayor Dianne White. Mayor White described how at the meeting Bohon

focused on the City's hiring decisions and refused to move his office:

       [Bohon] admitted he refused to move his work space to City Hall as
       directed by his supervisor (Ms. Hansen) and the Mayor (Herb Kuhnly). He
       disagreed that moving his desk and work space to City Hall where the rest
       of his Department was located was warranted by the operational needs or
       interests of the City.

CP at 348.

       Mayor White described how Bohon refused even her request to move his office:

       I asked Mr. Bohon if he would still refuse to move his office to City Hall
       even if I directed him as the new Mayor. He said he would not move and
       would continue to resist any directive to move and work at City Hall, even
       if it came from me, the current Mayor of the City.

CP at 348-49.


       Mayor White's letter terminating Bohon relied on his refusal to follow several

requests from his supervisor, as well as herself, to move his office:




                                            -14-
No. 73195-5-1/15


         While any one of the reasons cited for your termination standing alone is a
         sufficient basis to take this action, the fact that you were repeatedly given a clear
         directive to move your office and yet willfully refused to do so and even continued
         to resist that directive during the pre-termination hearing, convinces me that your
         continued employment is not in the city's best interest.

CPat164.


         Bohon does not dispute these facts. Indeed, Bohon stated in his deposition that,

"[y]es, I refused to move my office." CP at 104. Bohon explained he felt he should not

be required to move his office because, "my record shows the building department,"

where he was located, was in his opinion the "most efficient" location. CP at 93. Later,

Bohon stated "I could have moved my office but they'd have fired me down the road

sooner or later." CP at 96.


         To prevail on summary judgment, Bohon must show that age discrimination was

a substantial motivating factor in the City's decision to fire him or that its

nondiscriminatory reason—his failure to move his office—is pretextual. At best, he

identifies the fact that he was replaced by an employee who was 56 when hired. But

beyond this, Bohon identifies no remark or actions in the record that would give rise to

an inference that age factored into the City's decision. Instead, Bohon acknowledges

he refused to follow concrete and specific directives from his supervisor and the Mayor

to move his office. He also admitted that Mayor White had no reason to be biased

against him. He persisted in doing so even at his pretermination hearing before Mayor

White.


         Nor are we persuaded by Bohon's analogy to Rice v. Offshore Systems. Inc.. 167

Wn. App. 77, 272 P.3d 865 (2012). In that age discrimination case, the plaintiff

identified numerous age related remarks by his supervisor leading up to his termination.


                                             -15-
No. 73195-5-1/16


The employer also gave inconsistent reasons justifying the termination and the plaintiff

disputed the factual account given by the employer. None of these circumstances are

present here. Bohon's claim for age discrimination fails.

       As to Bohon's remaining claims, he simply argues "[t]he City devoted little

attention to the breach of contract and emotional distress claims in its motion, focusing

instead on the age discrimination claims. The Court should not have granted summary
judgment, as the trial court did, on all of Mr. Bohon's claims." Br. of Appellant at 41.

Bohon cites no authority in support of this argument. Nor does he explain how the

City's briefing or argument below relieves him of his obligation support his appeal with

argument or citation to authority. We do not consider conclusory arguments

unsupported by analysis or legal authority. RAP 10.3(a)(6); Cowiche Canyon. 118

Wn.2d at 809.


       Attorney Fees

       Bohon requests attorney fees as a prevailing party. Because he has not

prevailed, we deny his request.

                                      CONCLUSION

       For the reasons discussed above, we affirm the trial court's summary judgment

dismissal of Bohon's claims.




WE CONCUR:




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