                                                                                                                  F_P!-   iD
                                                                                                             CO'WIJ OF APPEALS
                                                                                                                DIVIS110p if
                                                                                                         2013 DEC 17 AN 8: 50




       IN THE COURT OF APPEALS OF THE STATE OF WASH

                                                          DIVISION II

PAULA JONES,                                                                             No. 43975 -1 - I]


                                            Appellant,


         V.



GRAYS         HARBOR             COUNTY,        a    municipal                UNPUBLISHED OPINION
corporation, organized and existing under the
laws    of    the    State    of     Washington; ALBERT
CARTER;              BOB        BEERBOWER;                 MIKE
WILSON;              ROD         EASTON;            MARILYN
LEWIS; MARSHA WHITAKER; CLAUDIA
SELF; and TERESA OLSON,


                                                 ondents.




         JOHANSON, A.C. J. —                Paula Jones appeals the superior .court' s summary dismissal of her

action against           Grays Harbor       County for    wrongful    termination   in   violation of public   policy. She-


asserts that her case met all the requirements for the tort under Washington law. She also argues


that the superior court erred by denying her motion to strike the County' s untimely rebuttal

documents       and       denying     her   motion   to   continue   the summary judgment        hearing.'    We hold that


 1) Jones failed to provide a sufficient record to review whether the trial court erred by denying

her    motion       to   strike, (   2) Jones abandoned her request for a continuance, and ( 3) the record is




  Jones expressly abandons her other arguments in her reply brief and we consider them no
further.
No. 43975 -1 - II




insufficient as a matter of law to show a nexus between Jones' s report regarding Dave Percell' s

conduct and her termination. We affirm.


                                                             FACTS


         Jones was employed for several years with the Grays Harbor County Fair Board,

including     serving   as   acting director.     She alleged that on August 17, 2007, Persell, a board of


directors member for the fair, came into the fair office very angry after a miscommunication

between them regarding               delivery   of   a   piece       of   equipment.   According   to   Jones,   Persell


approached her, yelled at her at such a close distance that he spat on her face, shoved a piece of

paper in her face, repeatedly demanded that she explain why she had called him a liar, and stood

over her while yelling at her with bulging eyes and a red face. Jones feared that Persell would hit

her because his tone was very threatening and aggressive; and when he finally left, all the

women     in the    office   began to cry.      A police report was filed and Jones told her supervisor that


she no longer felt safe being around or working with Persell. Persell resigned from the. fair board

on   October 11,      2007.       Sixteen months after Jones' s confrontation with Persell, the .County

terminated Jones from her employment effective December 31, 2008.


         In    January       2011,    Jones     filed    a    complaint      against   the   County, several County

commissioners,        and several of her former supervisors and co- workers in their individual

capacities.      Jones pleaded claims for defamation, retaliation, race discrimination/ disparate

treatment,     gender        discrimination/ hostile         work     environment,     and wrongful     termination   in


violation of public policy; but only the latter wrongful termination is at issue here.

          In July 2012, the County moved for summary judgment, seeking dismissal of all of

Jones'   s claims.    Jones responded that the County had wrongfully terminated her after she stood



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No. 43975 -1 - II



up to Persell.       She explained that Persell assaulted her on the job, the County wrongfully

terminated her for reporting Persell' s assault, her termination created a chilling effect among

other County employees, and the County violated clear public policy in firing her because

employees should feel safe and comfortable reporting assaults at work.

          The day before the summary judgment hearing, the County filed rebuttal documents in

reply to Jones'     s response.      The County argued that Jones had failed to timely file her responsive

documents and that her responsive documents still failed to create any genuine issue of material

fact. A clerk' s notation from the summary judgment hearing shows that Jones asked the court to

strike the County' s untimely rebuttal documents, asked for a continuance, but then agreed to

proceed with      the summary judgment               hearing. The superior court eventually granted summary

judgment    and     dismissed    all of     Jones'   s claims.    Jones appeals the superior court' s order granting
                                                                          2
summary dismissal         of   her   wrongful    discharge       claim.



                                                         ANALYSIS


                                     I.    MOTIONS TO STRIKE AND TO CONTINUE


          First, Jones argues that the superior court erred by denying her motion to strike the

County' s   untimely      rebuttal        documents in     support      of    summary judgment.   She argues that the


superior court, in the alternative, should have granted her motion to continue the summary

judgment hearing to give her time to prepare. Her arguments fail.

          The appellant has the burden of providing a sufficient record to review issues raised on

appeal.     Story   v.   Shelter     Bay    Co., 52 Wn.     App.       334, 345, 760 P. 2d 368 ( 1988).   Jones relies




2 In her reply brief, Jones abandons her other claims and asks us to focus solely on her wrongful
discharge in violation of public policy claim.


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No. 43975 -1 - II




solely on clerk' s notations that reflect merely that Jones asked the court to strike the County' s

rebuttal    filings,    asked   for       a   continuance,   and   then agreed to proceed.     Our record does not


contain written motions from Jones or the transcript from the summary judgment hearing to

explain what       Jones'   s motions were          based    upon or supported   by. Therefore, here the record is

incomplete        and   gives   us    nothing to      review.      Because Jones has the burden of providing a

sufficient record for us to review issues she raises on appeal and because she has not done so, her

arguments      fail.     Finally, because the summary judgment hearing record shows that Jones

abandoned her request for a continuance, there is no trial court continuance decision for us to

review.



                                                   II. SUMMARY JUDGMENT


           Next, Jones argues that the superior court erroneously dismissed her claim for wrongful

termination in violation of public policy because her claim satisfied all the elements under the

test laid   out   in Korslund        v.   DynCorp     Tri- Cities Servs., Inc., 156 Wn.2d 168, 178, 125 P. 3d 119


 2005).     We disagree.


                                          A. Standard of Review and Rules of Law


           When reviewing an order for summary judgment, we engage in the same inquiry as the

trial court. Mountain Park Homeowners Ass' n v. Tydings, 125 Wn.2d 337, 341, 883 P. 2d 1383


 1994).     We will affirm summary judgment if no genuine issue of any material fact exists and the

moving party is         entitled     to judgment      as a matter of    law.   CR 56( c).   All facts and reasonable


inferences are considered in the light most favorable to the nonmoving party, and all questions of

law are reviewed de novo. Berrocal v. Fernandez, 155 Wn.2d 585, 590, 121 P. 3d 82 ( 2005).




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No. 43975- 1- 11



        In Washington, an employer generally may terminate employment of indefinite duration

with   or without cause.        Bulman          v.   Safeway,      Inc., 144 Wn.2d 335, 340, 27 P. 3d 1172 ( 2001).


Wrongful discharge in violation of public policy is an intentional tort and a narrow exception to

the termination -
                at      -will employment              relationship;       courts must proceed with caution.        Worley v.

Providence Physician Servs. Co., 175 Wn.                         App.     566, 573, 307 P. 3d 759 ( 2013).      Our Supreme


Court has        recognized a public         policy tort      claim     in four    areas: "`(   1) where the discharge was a


result of   refusing to      commit an        illegal   act, (   2) where the discharge resulted due to the employee


performing        a public   duty    or obligation, (     3) where the [ discharge] resulted because the employee


exercised a legal right or privilege, and ( 4) where the discharge was premised on employee


 whistleblowing" activity. "'               Piel v. City ofFederal Way, 177 Wn.2d 604, 609 -10, 306 P. 3d 879

 2013) ( quoting Dicomes               v.    State,     113   Wn.2d 612, 618,             782 P. 2d   1002 ( 1989) (   citations




omitted)).




         This tort has four elements and the plaintiff must show that each element is satisfied in

order to prevail:


             1)    The plaintiffs must prove the existence of a clear public policy ( the clarity
         element).

          2)  The plaintiffs must prove that discouraging the conduct in which they
         engaged would jeopardize the public policy (the jeopardy element).
          3) The plaintiffs must prove that the public-policy-linked. conduct caused the
         dismissal (the causation element).
            4)    The defendant must not be able to offer an overriding justification for the
         dismissal (the absence of justification element)."


Worley,     175 Wn.     App.    at   573 ( quoting Gardner                v.   Loomis Armored, Inc., 128 Wn.2d 931, 941,


913 P. 2d 377 ( 1996) (        emphasis omitted) ( citations omitted)).                     Assuming, without deciding, the




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No. 43975 -1 - II




existence of the other elements, we exercise our discretion to examine only the third element

regarding causation.


                                            B. Causation Element


           Under the causation element, a plaintiff must show that public -
                                                                          policy -
                                                                                 linked conduct

actually    caused   termination of     employment.        Gardner, 128 Wn.2d         at   941.   Because wrongful


discharge in violation of public policy is an intentional tort, the plaintiff must establish wrongful

intent to discharge.     Korslund, 156 Wn.2d        at    178.   There must be sufficient evidence of a nexus


between the discharge       and   the   alleged   policy    violation.   Havens    v.      C &D Plastics, Inc., 124


Wn.2d 158, 179, 876 P. 2d 435 ( 1994).          Although issues of causation are usually questions of fact

not generally susceptible to summary judgment, we may determine causation as a matter of law

when reasonable minds can reach but one conclusion. Miller v. Likins, 109 Wn. App. 140, 144,

34 P. 3d 835 ( 2001).


           Jones' s only assertion that arguably supports the causation element is that one County

commissioner testified during depositions that the only example he could remember of

something Jones had done wrong            was   the " Persell incident."   Br.   of   Appellant     at   10.   But Jones


fails to   explain   how this testimony    establishes     the   required nexus.      Further, she fails to address


the timeline of events: the " Persell incident"           occurred in the summer of 2007; and the County

terminated Jones in December 2008,          some     16   months after   the incident      with   Persell. Jones does




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No. 43975 -1 - II




not cite any Washington case where an event occurring over a year prior to termination has
                                                                                                         3
satisfied   the   causation element      for   wrongful   discharge in   violation of public   policy.


        In addition, Jones presents no other evidence of causation nor does she make substantial


argument that her complaints to the County and to the police regarding Persell' s conduct were
                                     4
the cause    of   her termination.       Further, Jones cannot show wrongful intent to discharge because


she does not explain why the County' s proffered reasons for her termination did not actually

cause   her termination.      The County explained that it terminated Jones because of her poor

management skills, poor communication, and a lack of professionalism and ability to do the job.

Jones does explain why these reasons could not have been the cause of her termination. Instead

she relies on bare allegations that the County' s only reason for terminating her was that she stood

up to Persell after he assaulted her on the job. But bare allegations regarding the causation nexus

are insufficient to avoid summary judgment. Even when reviewed in the light most favorable to

Jones, the evidence is insufficient here to meet her burden. Reasonable minds can reach but one ,

conclusion here —
                that Jones has not shown on the record before us, sufficient evidence of a nexus


between her employment termination and any alleged public policy violation. Therefore she has

not met the causation element for the tort of wrongful termination in violation of public policy,




3 Instead, in her reply, she cites federal case law from the Sixth Circuit arguing that courts have
never suggested that 15 months is too long to establish causation. But we are not bound by Sixth
Circuit cases and we are not persuaded.

4
    Jones   makes    additional   assertions                 heading, " The Causation Element
                                                  in her reply     under   the
Exists."   Reply Br. of Appellant at 8. But the purpose of a reply brief is to respond to the
respondent' s arguments and not to raise new arguments that were not adequately addressed in the
appellant' s opening brief. RAP 10. 3( c).


                                                              VA
No. 43975 -1 - II



her   claim   fails,   and we    do   not address   the remaining   elements.     Worley, 175 Wn. App. at 573.

We hold that the superior court did not err in dismissing this claim.

         We affirm.


                                                ATTORNEY FEES


         Jones'   s request     for attorney fees does   not   comply   with   RAP 18. 1.   And because she is not


the prevailing party she is not entitled to attorney fees. RAP 18. 1.

         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.




                                                                                                    C




                                                                                    Johanson,
