IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

PAUL WILKINSON,                                  )
                                                 )           No. 70819-8-1
                     Appellant,                  )
                                                 )           DIVISION ONE
                                                                                     . ^ •.      '   j
              v.                                 )
                                                 )           UNPUBLISHED OPINIO^ ">§
AUBURN REGIONAL MEDICAL CENTER                   )
(ARMC), UNIVERSAL HEALTH                         )
                                                                                    CD        r r ±Z
SERVICES (UHS), DR. DANIEL CLERC,                )
TRACY RADCLIFF, MELISSA                          )
POLANSKY,                                        )
                                                 )
                     Respondents.                )           FILED: September 15, 2014          <
                                                 )

       Appelwick, J. — Paul Wilkinson appeals the dismissal of his complaint

alleging that his former employer discriminated against him based on gender,

retaliated against him for union activity, and violated implied contract terms of his

employment independent of the union contract. We affirm.

                                       FACTS


       In 2005, Tracy Radcliff, a manager at Auburn Regional Medical Center's

Sleep Disorder Center (ARMC), hired Paul Wilkinson as a sleep technician.

Throughout Wilkinson's employment, the terms and conditions of the sleep

technician position were set by a series of collective bargaining agreements

between ARMC and the         United   Food and        Commercial Workers Local 21.


Melissa Polansky, the departmental lead who was also a member of the union,

completed evaluations of Wilkinson's job performance in 2006, 2007, and 2008.

Radcliff completed Wilkinson's performance evaluation in 2009 and placed him

on a performance improvement plan to address his complaining, his resistance to

Polansky's   leadership    and    disciplinary       counseling,   and   his   excessive
No. 70819-8-1/2



absenteeism. After receiving complaints from doctors about his performance and

imposing a series of disciplinary actions, Radcliff terminated Wilkinson's

employment in October 2010.

       In 2012, ARMC and the union arbitrated the grievance Wilkinson filed

challenging his termination. The arbitrator found that the period of time between

Wilkinson's final warning and his termination was too short to give him the

opportunity change his behavior to avoid termination, particularly when he had

responded to previous warnings with only "debate and discussion."             The

arbitrator ordered reinstatement on a "last chance" basis. Wilkinson returned to

work briefly in June 2012. After Wilkinson committed certain performance errors

and arrived late for a mandatory meeting, Radcliff again terminated his

employment.

       In September 2012, Wilkinson filed a pro se complaint against ARMC, its

parent company, Dr. Daniel Clerc, Radcliff, and Polansky, seeking $1 million in

damages, as well as back pay, front pay, lost benefits, interest, costs, and

punitive damages in the amount of one percent of the annual revenue of ARMC's

parent company.    In his complaint, Wilkinson alleges that after his successful

challenge to a disciplinary action in April 2009, Polansky and Radcliff "labeled"

him as "'aggressive and insubordinate'" "simply because of his sex." He claims

Radcliff and Polansky then disciplined him with "little or no foundation" and gave

him negative reviews "without supporting factual evidence," while other

employees "committed the same or similar offenses and were never disciplined."

He also claims Radcliff terminated him without allowing him to "defend himself or
No. 70819-8-1/3




"improve or change his behavior," thereby, "[m]aking it clear that the decision to

terminate" was predetermined.        He claims Polansky gave him the "silent

treatment," prevented him from performing his job "as proscribed by policy and

lab standards," and yelled at him.

       The complaint states that Polansky and Radcliff "have treated the Plaintiff

and other males in their department to a different standard than female

employees in the same positions."       The complaint also alleges violations by

management of the collective bargaining agreement with the union and

Wilkinson's "employment contract." Without reference to any particular cause of

action or statute, the complaint states the defendants "did engage in

discrimination, harassment, and retaliation against" him during his employment,

"which resulted in his wrongful termination from ARMC on October 21, 2010."

       In May 2013, ARMC filed a motion to dismiss under CR 12, or in the

alternative for summary judgment under CR 56. In July, the trial court granted

the motion in part by (1) ordering Wilkinson to serve a summons on certain

defendants within 45 days; (2) dismissing with prejudice claims based on his

requests for his personnel file and payroll records; (3) dismissing with prejudice

claims challenging individual written disciplinary notices issued prior to his initial

termination; (4) dismissing with prejudice claims related to his 2010 grievance,

the 2012 arbitration, and the arbitrator's decision; (5) dismissing with prejudice

claims against the nonparty new owner of ARMC; (6) dismissing without

prejudice all claims relating to his 2012 termination and his subsequent

grievance; and (7) reserving ruling on remaining claims of gender discrimination,
No. 70819-8-1/4




harassment, or retaliation under the Washington Law against Discrimination

(WLAD), chapter 49.60 RCW, and Title VII of the Civil Rights Act of 1964 (Title

VII).

        After additional briefing and argument, the court dismissed with prejudice

Wilkinson's claims of gender discrimination and retaliation under the WLAD and

Title VII, as well as all claims of violations of the National Labor Relations Act

(NLRA), 29 U.S.C. §§ 151-169, in an order entered on August 9, 2013.

        Wilkinson appeals.

                                  DISCUSSION


        We review de novo both a summary judgment order and the propriety of a

trial court's dismissal of an action under CR 12(b)(6). Lam v. Global Med. Svs.,

Inc.. 127 Wn. App. 657, 661 n.4, 111 P.3d 1258 (2005); Dave Robbins Constr.,

LLC v. First Am. Title Co.. 158 Wn. App. 895, 899, 249 P.3d 625 (2010).         In

reviewing a summary judgment order, we view the facts and reasonable

inferences in the light most favorable to the nonmoving party. Lam. 127 Wn. App.

at 661 n.4. We may affirm an order granting summary judgment if there are no

genuine issues of material fact for trial and the moving party is entitled to

judgment as a matter of law. CR 56(c). If materials "outside the pleadings are

presented to and not excluded by the court," a CR 12(b)(6) motion is treated as a

summary judgment motion under CR 56. CR 12(b)(6).

        Wilkinson challenges the August 9 order, claiming the trial court erred in

granting summary judgment on his WLAD and NRLA claims and failed to enter

judgment on his implied contract claim.
No. 70819-8-1/5




  I.   WLAD


       The WLAD prohibits an employer from discriminating on the basis of sex.

RCW 49.60.180. A plaintiff suffers sex discrimination when he or she is treated

less favorably than other similarly situated employees because of his or her

gender. Shannon v. Pay 'N Save Corp., 104 Wn.2d 722, 726, 709 P.2d 799

(1985), abrogated on other grounds by Blair v. Wash. State Univ.. 108 Wn.2d

558, 740 P.2d 1379 (1987). In a discrimination case in which there is no direct

evidence or admission of discrimination, a plaintiff can proceed only by showing

facts sufficient to create an inference of discrimination.   Hill v. BCTI Income

Fund-I. 144 Wn.2d 172, 179-80, 23 P.3d 440 (2001), overruled on other grounds

by McClartv v Totem Elec. 157 Wn.2d 214, 137 P.3d 844 (2006).

       To create the inference of discrimination required for a prima facie case, a

plaintiff must show that he or she belongs to a protected class and was treated
less favorably in the terms or conditions of employment than a similarly situated,

nonprotected employee who does substantially the same work as the plaintiff.
Washington v. Boeing Co., 105 Wn. App. 1, 13, 19 P.3d 1041 (2000).               In

discrimination cases, the plaintiff must establish specific and material facts to

support each element of a prima facie case. Marouis v. Citv of Spokane. 130
Wn.2d 97, 105, 922 P.2d 43 (1996). Mere opinions and unsupported, conclusory

allegations will not defeat summary judgment. Chen v. State. 86 Wn. App. 183,
190, 937 P.2d 612 (1997); Absher Constr. Co. v. Kent Sch. Dist. No. 415. 77 Wn.

App. 137, 141-42, 890 P.2d 1071 (1995).
No. 70819-8-1/6




       If an employer responds to a prima facie case by articulating a legitimate,

nondiscriminatory reason for its actions, the employee resisting summary

judgment must produce evidence raising a genuine issue of material fact as to

whether the employer's reason is unworthy of belief or is mere pretext for what is

in fact a discriminatory purpose. Grimwood v. Univ. of Puget Sound. Inc.. 110

Wn.2d 355, 364, 753 P.2d 517 (1988). "'Speculation and belief are insufficient to

create a fact issue as to pretext.     Nor can pretext be established by mere

conclusory statements of a plaintiff who feels that he has been discriminated

against.'" Hines v. Todd Pac. Shipyards Corp.. 127 Wn. App. 356, 372, 112 P.3d

522 (2005) (quoting McKev v. Occidental Chem. Corp.. 956 F. Supp. 1313, 1319

(S.D.Tex. 1997).

        In moving for summary judgment, ARMC presented admissible evidence

to demonstrate that Radcliff disciplined and ultimately terminated Wilkinson

based on his job performance, insubordination, and attendance issues. ARMC

offered records of written disciplinary actions against Wilkinson and Radcliff's

affidavit detailing her decision to hire Wilkinson in 2005, her disciplinary actions

against him, and her decision to terminate his employment in 2010 and 2012. In

addition, ARMC presented evidence to rebut Wilkinson's allegations that female

employees were not subject to discipline.           In particular, ARMC offered

disciplinary records indicating that two female sleep technicians, CO.1 and B.R.,
received written discipline for lab policy and procedure violations and attendance

       11t is not clear from the record below that the two employees consented to
the disclosure of information from their personnel files therefore we are redacting
their identities.
No. 70819-8-1/7




issues during Wilkinson's employment, and that Radcliff terminated B.R.'s

employment in August 2009 for her violation of the attendance policy.

       Wilkinson fails to identify any admissible evidence in the record to create

an inference that he was treated differently than female sleep technicians.

According to Wilkinson, four female technicians, including CO. and B.R., failed

to follow lab policies and procedures and missed mandatory meetings without

receiving discipline.   But, to establish these facts, he relies on documents he

created, such as journal entries, notes and letters to management, and lab notes,

all of which are based largely on speculation, hearsay, and his own unsupported,

self-serving conclusions and beliefs about what other people did or did not do,

often outside his presence.

       Similarly, Wilkinson fails to identify any admissible evidence to support his

claim that ARMC's stated reasons for his discipline and termination are unworthy

of belief or mere pretext to disguise a discriminatory purpose.             Despite

acknowledging that Radcliff both hired and fired him, Wilkinson offers no sensible

response to the resulting "strong inference that he . . . was not fired due to any

attribute" of which Radcliff was aware at the time she hired him.         Griffith v.

Schnitzer Steel Indus.. Inc.. 128 Wn. App. 438, 453, 115 P.3d 1065 (2005).

       Throughout his lengthy briefing, Wilkinson presents extended, passionate

discussion and argument to demonstrate his proper work performance and attack

the credibility and judgment of any person offering a differing or critical review.

Again, Wilkinson relies primarily on unsworn documents of his own creation

offering his personal interpretation of lab policies and procedures and his own
No. 70819-8-1/8




subjective justifications for his choices in performing his job duties.      But, an

employee's disagreement with a supervisor's assessment of job performance

does not demonstrate pretext or "give rise to a reasonable inference of

discrimination." Parsons v. St. Joseph's Hosp. & Health Care Ctr.. 70 Wn. App.

804, 810-11, 856 P.2d 702 (1993).

       In sum, because Wilkinson fails to identify any evidence to raise an

inference of sex discrimination or to create a material issue of fact regarding the

reason for his discipline and discharge, the trial court properly dismissed his

WLAD sex discrimination claim.

       To the extent Wilkinson intended to assert a claim of a          hostile work


environment based on sex discrimination or harassment, any such claim fails for

the same reason. The employee's gender must be the motivating factor in the

employer's treatment in order for a hostile work environment to exist. See Coville

v. Cobarc Servs.. Inc.. 73 Wn. App. 433, 438-39, 869 P.2d 1103 (1994).

Because Wilkinson fails to identify any evidence beyond speculation and

conclusory allegation to suggest that his sex was the motivating factor in

Radcliff's or Polansky's actions, summary judgment was proper.

 II.   Title VII


       Although Wilkinson states for the first time in his reply brief that dismissal

of his Title VII claim "is also being appealed," he fails to cite to the record or

present any authority or argument to demonstrate error in the trial court's

dismissal of the claim.      Given these failures, we need not address this

assignment of error. Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801,


                                         8
No. 70819-8-1/9



809, 828 P.2d 549 (1992) (declining to address arguments raised for the first

time in a reply and assignments of error unsupported by citation to the record,

argument, or authority). Moreover, Wilkinson offers no reason to distinguish any

possible Title VII claim from his WLAD claims, which fail for a lack of evidentiary

support.2

 III.   Retaliation


        Although Wilkinson did not clearly articulate the basis for any retaliation

claim in his complaint, he argues on appeal that ARMC violated the NLRA by

retaliating against him for reporting violations of the contract to the union and for

fighting every disciplinary action after April 2009.     The record indicates that

Wilkinson filed a charge with the National Labor Relations Board (NLRB) in

March 2011 claiming that ARMC disciplined and discharged him in retaliation for

"his Union and/orprotected [sic] concerted activity."    In a letter dated June 23,

2011, the NLRB regional director dismissed the charge and advised Wilkinson of

his right to appeal the dismissal to the Acting General Counsel of the NLRB.

Apparently, Wilkinson did not file such an appeal.

        Citing San Diego Bldg. Trades Council v. Garmon. 359 U.S. 236, 244-45,

79 S. Ct. 773, 3 L. Ed. 2d 775 (1959), ARMC argues that the NLRB has

exclusive jurisdiction over controversies even arguably involving unfair labor

practices under the NLRA. The Garmon doctrine preempts claims based on a

state law that attempts to regulate conduct that is arguably either prohibited or

protected by the NLRA. Hume v. Am. Disposal Co.. 124 Wn.2d 656, 662, 880


 Given this resolution we deny ARMC's motion to strike.


                                         9
No. 70819-8-1/10



P.2d 988 (1994). Although exceptions exist and Washington courts are generally

prejudiced against preemption, because Wilkinson specifically identifies his

retaliation claim as a violation of the NLRB, and because he has failed to

articulate any challenge to federal preemption either below or on appeal, the trial

court did not err in dismissing his retaliation claim. Hume. 124 Wn.2d at 664; Kilb

v. First Student Transp.. LLC 157 Wn. App. 280, 293, 236 P.3d 968 (2010).

IV.    Implied Contract

       Finally, Wilkinson claims that the trial court failed to enter judgment on his

implied contract theory. But, in its August 9 oral ruling, the trial court indicated

that Wilkinson presented no evidence to establish the existence of a contract

between ARMC and Wilkinson independent of the union contract.                   And,

Wilkinson acknowledged on the record that the trial court was granting summary

judgment to ARMC on all claims or causes of action "within the contours of the

original complaint."

       Nevertheless, in his briefing before this court, Wilkinson argues that

because the collective bargaining agreement does not specify policies and

procedures    for   job   performance,   investigation   of   complaints   regarding

performance, and disciplinary decisions an implied contract must exist "between

the employer and employee for those things not covered" by the agreement.

Wilkinson fails to identify any authority or provide coherent argument to support

his claim.


       Moreover, this claim is preempted by section 301              of the Labor

Management Relations Act (LMRA), which preempts state law breach of contract


                                         10
No. 70819-8-1/11




claims involving job positions covered by a collective bargaining agreement.

Swinford v. Russ Dunmire Oldsmobile. Inc.. 82 Wn. App. 401, 411, 918 P.2d 186

(1996). To the extent Wilkinson believed ARMC had communicated some kind

of enforceable promise to him regarding his employment outside the terms of the

collective bargaining agreement, his remedy was to follow the grievance and

arbitration procedures in the union contract. ]d_, at 412. Because he failed to do

so and because federal law "prevents both employers and employees alike from

'short-circuiting' an agreed-upon grievance procedure by resorting to the court

system," ARMC was entitled to dismissal of Wilkinson's implied contract claim as

a matter of law. Id.


       Affirmed.




WE CONCUR:




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