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                                                                                                              VIA r




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II

MARTHA LEAH WOODS,                                                         No. 44295 -7 -II


                                  Appellant,


        v.



WASHINGTON STATE DEPARTMENT OF                                      UNPUBLISHED OPINION
CORRECTIONS, and TERRI VAN AUSDLE
and "   JOHN DOE        VAN AUSDLE and their

marital community,


                                  Respondents.




         LEE, J. —     Martha Leah Woods appeals the superior court' s order granting summary

judgment in favor     of   her former   employer   the Department   of   Corrections ( DOC).   The superior


court dismissed all of Woods' s employment discrimination claims, her breach of contract claim,


and   her   negligent supervision and retention claim.      She also argues that the superior court erred


in striking her expert' s report. We affirm. We also deny Woods' s request for attorney fees.

                                                    FACTS


A.          2005 SETTLEMENT AGREEMENT AND TRAINING


            In September 2005, Woods entered into a settlement agreement with the DOC resolving a

different lawsuit, pending     grievances, and public records requests      Woods filed   against   the DOC.
No. 44295 -7 -II



Under the terms of the settlement, Woods was transferred from her then current position as a


secretary supervisor to a position as a corrections records specialist in the Lakewood field office

beginning    September 12, 2005.           Woods was required to serve a 12 -month trial service period in


her   new position.          In regard to training for Woods' s new position, the settlement agreement

stated:



                   6.   The training needs for Martha Woods shall be established between the
          supervisor of [Woods' s new position] and Martha Woods no later than September
          30, 2005.       The Department of Corrections recognizes that Martha Woods will
          need   job -specific training.       The Department of Corrections agrees that in the
          absence of any other problem, lack of training or experience alone, will not be
          sufficient reason for reversion within the first six months of the trial service. Any
          dispute regarding the necessity for training shall be finally determined by the
          second line supervisor. Martha Woods waives any further right of appeal or right
          to grieve the decision.


Clerk' s Papers ( CP) at 26.


          When Woods originally transferred to the records unit in the Lakewood field office, she

was    supervised       by    Sharon Dahlstrom.        During the time that Woods was supervised by

Dahlstrom,       she   primarily did   records   copying   and   filing.   She also studied the records guide


containing    office procedure       for   handling   records.   In November 2005, Dahlstrom retired, and


Terri Van Ausdle became Woods' s direct supervisor.


          A training plan was created for Woods by the human resources supervisor and reviewed

and   approved     by    Van Ausdle.        Van Ausdle and Woods discussed and finalized the formal


training   plan on      December 5, 2005.        The formal training plan assigned specific employees to

train Woods in         particular areas.    Van Ausdle signed off on Woods' s completion of the formal


training plan in May 2006.




                                                           2
No. 44295 -7 -II



B.      SEPTEMBER 2005- AUGUST 2006: RECORDS UNIT TRANSFER


        Van Ausdle'     s   initial   evaluation of   Woods'       s work performance was positive.          However,


Woods claims that Van Ausdle became more critical of her work and documented numerous


errors after January 19, 2006, when Woods disclosed her fragile mental state to Van Ausdle.

Van Ausdle does not remember Woods disclosing anything about her mental state.

        Van Ausdle' s January 2006 evaluation stated that Woods was difficult to train and did not

follow directions     well.     Woods'    s   subsequent evaluations       continued       to decline.   After Woods


completed    the   training    plan,    Van Ausdle      provided       Woods       with   a "   Memo of Counseling"

documenting many areas in which she needed to improve and providing examples of Woods' s

inappropriate behavior. CP at 177 -88.

        Woods      perceived much         of   Van Ausdle'     s   behavior   as   harassing.      Her complaints are


thoroughly documented in the grievance she filed with the DOC regarding a hostile work

environment.       She included       allegations   that Van Ausdle humiliated            and   belittled her. She also


stated that Van Ausdle was hypercritical of her work and harassed her by documenting all of her

behavior in the    office.    After an investigation, which included speaking to many other people in

the records unit, the DOC determined that Van Ausdle' s behavior was not discriminatory or

based   on   a   discriminatory intent.         However, the investigation did note problems with Van


Ausdle' s communication and supervisory style, and provided recommendations for dealing with

these problems.


C.       MEDICAL LEAVE


         In early August 2006, Woods left the records unit and went on medical leave for a back

injury (unrelated    to her   records unit position or mental condition).             Woods had not yet completed




                                                           3
No. 44295 -7 -II



her   one -year   trial   service period       ending September 12, 2006.            During the period of time Woods

was on medical            leave,    she received   Department     of   Labor    and    Industries ( L &I) benefits.   On


February 7, 2007, while still on medical leave, Woods went to the records unit to get some of her

belongings that were left in her desk. In her declaration, Woods stated:

                    On     February     7, 2007, [ Woods]   returned to the unit while still employed by
         DOC to        collect some personal        belongings....      As [ Woods] prepared to leave the
         building      with    boxes in hand, Van Ausdle               approached [     Woods] from behind,

         stomping loudly and placing her legs right next to [ Woods' s] as if to trip her.
             Van Ausdle' s left leg touched [ Woods' s] clothing and her stomach touched
          Woods' s] upper buttocks area.


CPat521.


D.       REQUEST FOR REVERSION TO SECRETARY SUPERVISOR


         In June 2007, while still on L &I leave, Woods sent the DOC an e -mail requesting

reversion    to   an   open        secretary   supervisor position.      Woods had held a secretary supervisor

position prior     to the settlement       agreement    transferring her    to the     records unit.   In her e -mail, she


stated that she was requesting to revert back to the secretary supervisor position, and only that

position, and that the reversion would be effective on the day she obtained the secretary

supervisor    position.        Bonnie Francisco from the human resources department responded to


Woods' s e -mail, stating that she was treating Woods' s request as a formal request for voluntary

reversion under the terms of the Collective Bargaining Agreement (CBA).

          Because Woods was on medical leave and receiving L &I benefits, the DOC needed

information regarding whether Woods could perform the job with or without accommodation.

Her doctor had filed reports stating that she could be placed on light modified duty, but probably
                     .

should not return          to working     with   Van Ausdle because       of   the   stress.   He had not reviewed any

documents specifically related to the job description and essential functions of the secretary


                                                              4
No. 44295 -7 -II



supervisor position.       On June 21, 2007, the DOC requested that Woods obtain documentation


from her doctor indicating whether she could perform the essential elements of the secretary

supervisor position, with or without accommodation.



          On June 28, Woods stated that she would have her doctor evaluate the job description and

commuting     requirements.       When DOC did not hear from Woods, Armando Mendoza, the field

administrator,     sent   Woods     a   letter   on   July   26,   stating that because they had not received

documentation approving her for work, she was now eligible to be placed on the internal layoff

list per the terms of the CBA.


          Woods filed a grievance alleging that the DOC' s failure to provide her with a reversion

was .discriminatory.       The DOC investigated this              grievance.   After reviewing the events leading

up to the denial of the reversion and the terms of the CBA, the investigation, found that Mendoza

and Francisco properly complied with the terms of the CBA and did not engage in discriminatory

action.




E.        EMPLOYMENT DISCRIMINATION SUIT


          On September 30, 2009, Woods filed                 suit against   the DOC     and   Van Ausdle.   Woods' s


complaint     alleged     the   following    claims     against     the   DOC: (   1)   hostile work environment,


disparate treatment, failure to provide reasonable accommodation, and retaliation in violation of


the Washington Law Against Discrimination ( WLAD); ( 2) breach of contract; and ( 3) negligent


supervision and retention. The DOC moved for summary judgment.

          On November 8, 2012, Woods filed a report by Dr. Gary M. Namie opining on the effect

of Van Ausdle' s behavior on Woods. The DOC moved to strike the report as untimely. The trial

court granted the motion.




                                                              5
No. 44295 -7 -II



            On November 9, the              superior   court   heard the    motion   for summary judgment.          The


superior court granted the DOC' s motion for summary judgment and dismissed all of Woods' s

claims with prejudice. Woods appeals.


                                                          ANALYSIS


            Woods argues that the superior court erred in excluding Dr. Namie' s report. The superior

court did not abuse its discretion by excluding the report because Woods did not timely file the

report.




            Woods also argues that the superior court erred in granting the DOC' s motion for

summary judgment.             Woods         raises numerous claims, and       her   arguments    are varied.   First, her


claim of a hostile work environment was based on Van Ausdle' s conduct toward her during her

time   at   the   records unit.      The superior court did not err by granting summary judgment as to the

hostile work environment claim because the statute of limitations barred her claim and because

she   failed to     make a prima        facie   case of   discriminatory intent.     Second, Woods claims that she


was subject to disparate treatment because she was separated from service rather than being

granted     her- requested        rev. rsion.
                                     e          The superior court did not err by granting summary judgment

because Woods cannot identify an appropriate comparator to demonstrate disparate treatment.

Third, she claims that the DOC failed to accommodate her disability by separating her from

service     without    providing       an    accommodation       for her   reversion.      The superior court properly

granted summary judgment because Woods failed to make a prima facie case of failure to

accommodate          by failing      to demonstrate that       she   reasonably   cooperated with   the DOC.     Fourth,


Woods       claims   that   her   separation    from   state service was    retaliatory.    The superior court properly

granted summary judgment because Woods fails to demonstrate a prima facie case by showing a



                                                                 6
No. 44295 -7 -II



causal connection between her protected activities and the DOC' s adverse employment action.


Finally, Woods makes a claim for breach of contract and tort claims for negligent supervision
and retention.     The superior court did not err by granting summary judgment as to Woods' s

contract or tort claims.


                                  I. EXCLUSION OF DR. NAMIE' S REPORT


          Woods argues that the superior court improperly excluded Dr. Namie' s report, alleging

the superior court failed to conduct a Frye' hearing to determine the admissibility of her expert' s

report.    Because that the superior court did not abuse its discretion in excluding the report as

untimely, we do not reach the Frye issue.

          We review a trial court' s decision to exclude an untimely declaration or report for an

abuse of     discretion. Southwick    v.   Seattle Police Officer John Doe No. 1,   et al.,   145 Wn. App.

292, 301, 186 P. 3d 1089 ( 2008) (    citing Brown v. Peoples Mortg. Co., 48 Wn. App. 554, 559, 739

P. 2d 1188 ( 1987)).     In Southwick, the appellate court affirmed the trial court' s decision excluding

an expert' s affidavit from consideration in a summary judgment motion because the affidavit

was    untimely.   145 Wn. App. at 301 -02.

           Here, Woods filed Dr. Namie' s report and affidavit with the court on November 8, 2012,

just one day before the superior court was scheduled to hear the summary judgment motion. The

DOC had been seeking Woods' s expert' s report for approximately two years prior to this

disclosure; but Woods filed Dr. Nainie' s report to the DOC just one day before the summary

judgment      hearing.    Under these circumstances, the disclosure of Dr. Namie' s report was




 1
     Frye v. United States, 293 F. 1013 ( D. C. Cir. 1923).


                                                       7
No. 44295 -7 -II



untimely.     See CrR 56( c) (   requiring that opposing affidavits be filed no later than 11 calendar

days prior to the summary judgment hearing).

        The superior court' s decision to exclude Dr. Namie' s report was not based on its

admissibility, but rather on Woods' s discovery violation and her late disclosure of the report.

Accordingly, Woods' s argument regarding the necessity of the Frye analysis is irrelevant, and

we hold that the superior court did not abuse its discretion by excluding the report because it was

untimely.


                                      II. SUMMARY JUDGMENT CLAIMS


A.      WLAD CLAIMS


        Wood' s complaint alleged the following WLAD claims against the DOC: hostile work

environment,     disparate treatment, failure to   accommodate,   and retaliation.   The superior court


properly granted summary judgment in favor of the DOC on all of Woods' s WLAD claims.

        The WLAD prohibits employment discrimination based on sensory, mental, or physical

disability.    RCW 49. 60. 030( 1).      Summary judgment is often inappropriate in discrimination

cases because the WLAD is to be liberally construed and the evidence will generally result in

competing inferences of both discrimination and nondiscrimination that must be resolved by a

jury. Frisino v. Seattle Sch. Dist. No. 1, 160 Wn. App. 765, 777, 249 P. 3d 1044, review denied,
172 Wn.2d 1013 ( 2011).          However, summary judgment is appropriate when the plaintiff fails to

raise a genuine issue of material fact as to one or more prima facie elements of the plaintiff' s

discrimination claims. Frisino, 160 Wn. App. at 777.

        1.         Hostile Work Environment


                   a.   Statute of Limitations




                                                      8
No. 44295 -7 -II



          As an initial matter, we note that Woods' s hostile work environment claim arises from

events    while   she worked      at   the   records   unit ( which was        before September 2006)      Thus, her

                                                                                            2
hostile   work environment claim         is barred     by the   statute of   limitations.


          Woods' s brought her claim for hostile work environment under chapter 49. 60 RCW. All

actions brought under chapter 49.60 RCW are subject to a three -year statute of limitations.

Goodman      v.   The   Boeing   Co., 75 Wn.      App. 60,      77, 877 P. 2d 703 ( 1994),      aff'd, 127 Wn.2d 401

 1995).


          Woods' s hostile work environment claim under chapter 49. 60 RCW is based on Van


Ausdle' s conduct towards her during Woods' s time assigned to the records unit. Woods worked

at the records unit from September 2005 until August 2006; therefore, claims filed in September

2009 for acts occurring during the period of time Woods worked at the records unit are outside

of the statute of limitations and are barred.

          Woods asserts that there was one act on February 7, 2007, that was part of a series of acts

constituting repeated conduct, and thus, the claims are not barred by the statute of limitations.

But this particular act was not part of the series of acts, and therefore, the statute of limitations

applies and bars Woods' s claim.


          In Antonius     v.   King County,     153 Wn.2d 256, 103 P. 3d 729 ( 2004), our Supreme Court


articulated the rule for determining when the statute of limitations bars a claim based on a series




2
 Woods' s claims for failure to accommodate, disparate treatment, and retaliation all result from
her request for reversion and separation from state employment which occurred within the statute
of   limitations. 153 Wn.2d at 273 -74.



                                                                9
No. 44295 -7 -II



                                   by adopting the analysis in National Railroad Passenger Corp. v.
                           acts3




on   discriminatory

Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 ( 2002):

                      Under Morgan,       a "   court' s task is to determine whether the acts about
         which an employee complains are part of the same actionable hostile work
         environment practice, and, if so, whether any act falls within the statutory time
         period."       Morgan, 536 U.S.         at    120.   The acts must have some relationship to each
         other to constitute part of the same hostile work environment claim, and if there is
         no relation, or if "for some other reason, such as certain intervening action by the
         employer" the act is " no longer part of the same hostile environment claim, then
         the   employee         cannot recover        for the      previous acts"   as part of one hostile work
         environment claim. Morgan, 536 U. S. at 118.


153 Wn.2d        at   271. "[    A] gap, in and of itself, is not a reason to treat acts occurring before and

after that gap as not constituting parts of the same unlawful employment practice under

Morgan." Antonius, 153 Wn.2d at 272.


         Here, the one act that Woods relies on is not part of the same series of events contributing

to a   hostile   work environment such                that the     rule   in Antonius    makes    her   claim   timely.    Woods


claims she was subjected to a series of acts that constituted a hostile work environment during

the time   she worked           for Van Ausdle in the           records unit.    However, Woods stopped working in

the records unit in August 2006 when she went on medical leave. While she was still on medical


leave, she went to her office in February 2007, and was allegedly harassed when Van Ausdle

walked up behind her in a manner Woods perceived as intimidating.


3
  Antonius distinguished claims for a hostile work environment, which is based on a series of
acts, from discrimination claims based on a single, discrete act such as termination, failure to
promote, refusal to hire, etc. Antonius, 153 Wn.2d at 264 ( citing Nat' l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101,               108 -13,    122 S. Ct. 2061,            153 L. Ed. 2d 106 ( 2002)).            Hostile work
environment claims "' are            different in kind from discrete             acts'   and `[   t]heir very nature involves
repeated conduct. "'            Antonius, 153 Wn.2d           at   264 ( quoting Morgan, 536 U.S.         at    115).   For claims

based on a discrete act the statute of limitations clearly runs from the date the act occurred.
Antonius, 153 Wn.2d at 264.




                                                                     10
No. 44295 -7 -II



         This is    not     the type of   series    of acts   contemplated           by   Anotonius     and   Morgan.   For


example, in Morgan, the United States Supreme Court contemplated a hypothetical where either

 1) a person was subject to continuing harassment over 400 consecutive days and files a claim on

day    401   or ( 2) a person was subjected        to harassment for days 1 - 100            and on    day 401. 536 U.S. at

118.    The court did not see a significant difference between the two hypotheticals because both

created the same hostile work environment for the employee.


             Similarly, in Antonius, the plaintiff was subjected to harassment when she worked at the

Seattle jail, then transferred to a female jail where she was not subjected to harassment, and later

transferred      back to the Seattle jail.        153 Wn. 2d       at   259.       Our Supreme Court stated that, as a


matter of law, the gap did not bar an action based on the earlier incidents, seemingly based on the

idea that a series of acts was occurring that continually made the Seattle jail a hostile work
                                                                                                   4
environment       for the   plaintiff at all   times   when she was employed              there.


             Here, Woods did not return to work at the records unit after going on leave. Furthermore,

the incident in February 2007 did not relate to the earlier incidents while Woods was working at

the records unit. Woods complained that Van Ausdle was overly critical of her work, humiliated

and belittled her about her work, and singled her out for harsh treatment regarding her work

performance.        The incident in February 2007 occurred while Woods was on medical leave and

did    not   have anything to do     with      Woods personally         or   her   work performance.      All Woods stated


was    that Van Ausdle apparently           bumped into her        while      walking up to her. The record does not


show that Van Ausdle engaged in a confrontation with Woods, commented on her work or



4 In Antonius, the court ultimately remanded to the trial court because the trial court applied the
wrong test to determine whether the statute of limitations barred the plaintiff' s claims.


                                                              11
No. 44295 -7 -II



whether she would return, or engaged in any other behavior Woods had complained about.

Further, Woods never returned to the records unit, so there was no ongoing harassment that

continued to make the records unit a hostile work environment during the statute of limitations

period.     Therefore, the           rule    in Antonius does     not    apply here,       and Woods' s hostile work


environment is barred under the statute of limitations.


          Even assuming that the statute of limitations did not bar Woods' s hostile work

environment claim, the superior court did not err in granting summary judgment and dismissing

her claim.


                   b.    Prima Facie Hostile Work Environment Claim


          Woods has failed to present a prima facie case of discrimination arising from a hostile

work   environment.          To establish a prima facie case of disability discrimination resulting from a

hostile work environment, Woods must show that ( 1) she was disabled within the meaning of the

antidiscrimination statute, (          2) the harassment   was unwelcome, ( 3)         the harassment was because of


her   disability, ( 4) the harassment affected the terms and conditions of her employment, and ( 5)

that harassment      was      imputable to the     employer.     Robel     v.   Roundup Corp.,    148 Wn.2d 35, 45, 59


P. 3d 611 ( 2002).           The fundamental point in a disability discrimination case is whether the

employer acted with               discriminatory intent   or motive.       Parsons    v.   St. Joseph'   s   Hosp. &   Health


Care Ctr., 70 Wn. App. 804, 807, 856 P.2d 702 ( 1993).

          Here, summary judgment was appropriate because Woods failed to raise a genuine issue

of material   fact      as   to    whether   Van Ausdle    was    acting    with   discriminatory    intent.     The record


establishes that the DOC investigated Woods' s original discrimination grievance and found that

Van Ausdle was using ineffective communication skills, for which the DOC recommended



                                                             12
No. 44295 -7 -II



changes to her management style. But, the investigation did not reveal any discriminatory intent

on Van Ausdle' s part.


         Moreover, Woods presented evidence establishing that, after she left the records unit,

other members of the records unit filed grievances against Van Ausdle arising from similar

behavior that Woods had complained of. Woods is correct in her assertion that these complaints

establish     that Van Ausdle      was mean       to her.      But Woods has to do more than show Van Ausdle


was   mean      to   her in     order   to   support     a    discrimination     claim.    She also has to establish


discriminatory       intent.    The additional complaints against Van Ausdle establish that Van Ausdle


treated the majority        of people    in the   records unit        in the   same manner as   Woods.        Accordingly,

there is nothing in the record, outside of Woods' s speculation, that establishes Van Ausdle was

acting   with   discriminatory intent. Failure of proof on any one element of a prima facie case

makes summary judgment proper. Because Woods has failed to raise a genuine issue of material

fact as to Van Ausdle' s discriminatory intent, the superior court properly granted summary

judgment of her hostile work environment claim.


         2.          Disparate Treatment


         Woods claims that she was subject to disparate treatment because she was placed on the

internal layoff list when other people who had complained about Van Ausdle' s behavior were

not placed on        the internal layoff list.      However, contrary to her assertion, Woods has failed to

identify any appropriate comparator to establish a prima facie claim of disparate treatment.

         To     establish a prima       facie   case   of    disparate treatment, Woods       must show        that   she (   1)


belongs to      a protected class; (     2) was treated less favorably in the terms and conditions of her

employment           than   a   similarly    situated,       nonprotected      employee;   and (   3)   the   nonprotected




                                                                 13
No. 44295 -7 -II


 comparator" was         doing   substantially the     same work.    Domingo     v.   Boeing     Emps. ' Credit Union,


124 Wn.       App.   71, 81, 98 P. 3d 1222 ( 2004).       Woods compares her situation to other records unit


employees      who     filed   grievances   against    Van Ausdle   and were not        fired.    Woods' s position is


misguided.       To support her prima facie claim, she would need to demonstrate that she was


treated differently than another employee who had been laid off per the terms of the CBA after

                                                    returning from L &I leave.        She has          done   so.   Without
attempting to        obtain a reversion when                                                     not




an appropriate comparator, Woods cannot show that she was treated differently based on

belonging to a protected class, and she fails to raise a genuine issue of material fact as to one of

the elements of a prima facie case for disparate treatment. The superior court did not err when it

granted summary judgment on Woods' s disparate treatment claim.

         3.          Failure to Accommodate


         Woods claims that the DOC failed to accommodate her disability by refusing her request

for reversion to a secretary supervisor position. Under RCW 49. 60. 180, an employer is liable for

discrimination if the          employer     fails to   accommodate   an   employee' s      disability.        It is unclear


whether Woods is arguing that the DOC failed to accommodate her disability related to the back

injury   or   arguing that the DOC failed to           accommodate    her   mental condition.           Regardless, both


claims fail, and the superior court properly granted summary judgment.

         If Woods' s claim is based on the DOC' s failure to accommodate her back injury, then she

failed to cooperate with the DOC to establish an appropriate accommodation and, thus, failed to

make a prima         facie   case of   failure to   accommodate.    If Woods is claiming that reversion was a

necessary accommodation due to her mental condition and working with Van Ausdle, then the




                                                             14
No. 44295 -7 -II



requested accommodation is unreasonable as a matter of law, and she has failed to make a prima

facie case for failure to accommodate.


         To establish a prima facie case of failure to accommodate, the employee must show that


he or she ( 1) had a sensory, mental, physical abnormality that substantially limited his or her

ability to   perform      the   job; ( 2)    was qualified to perform the essential functions of the job with or

without      reasonable       accommodation; (            3)   gave the employer notice of the disability and its

accompanying substantial limitations; and ( 4) after notice was given, the employer failed to

adopt    measures        that    were       medically necessary to         accommodate       the   disability.    Riehl v.


Foodmaker, Inc., 152 Wn.2d 138, 145, 94 P. 3d 930 ( 2004).                        If the employee fails to establish a


prima facie case of failure to accommodate, the employer is entitled to judgment as a matter of

law. Hill v. BCTIIncome Fund - , 144 Wn.2d 172, 181, 23 P. 3d 440 ( 2001).
                             I


          The process for accommodating an employee' s disability relies on cooperation between

employees and employers, as well as open communication                            between the      parties.   Goodman v.,


127 Wn.2d at 408 -09.                  Although the employer has a duty to determine the extent of the

employee'     s   disability,    the   employee must give notice          to trigger the   employer' s   duty.   Goodman,


127 Wn.2d         at   409. And, '      the employee retains a duty to cooperate with the employer' s efforts

by   explaining the       disability        and   the   employee' s qualifications. "'   Brownfield v. City of Yakima,

178 Wn.      App.      850, 876, 316 P. 3d 520 ( 2013) (          quoting Frisino, 160 Wn. App. at 779 -80).

          Here, Woods failed to cooperate with the DOC to establish a reasonable accommodation


with    regard     to her back         injury.      Woods failed to provide the DOC with information about


whether she was able to perform the essential functions of the job, or if she would need an

accommodation            in   order    to   do    so.    After requesting this information, Woods stated that she



                                                                   15
No. 44295 -7 -II .



would get the information from her doctor; however, she did not communicate any further with

the DOC         after      that.    Woods claims that the DOC acted inappropriately because she was

eventually         able   to   obtain   the   appropriate   documentation later. However, she never informed the


DOC about the             delay    or   the   reason   for it. We do not agree that an employer should be expected


to   wait    for   an employee           to   respond when    there is   no   communication        from the    employee.    By

failing to communicate with the DOC and not providing documentation regarding her ability to

perform the essential functions of the job and what accommodations, if any, would be necessary,

Woods failed in her              duty    to "'   cooperate with the employer' s efforts by explaining the disability

and   the    employer' s qualifications.'"              Brownfield, 178 Wn. App. at 876 ( quoting Frisino, 160 Wn.

App.    at   779 -80).         Accordingly, she has failed to establish a prima facie failure - accommodate
                                                                                              to-

case.




             In addition to a duty to cooperate, the accommodation requested by the employee must be

reasonable.         If Woods' s claim is that the reversion request was an accommodation for her mental


disability, the accommodation is, as a matter of law, unreasonable, and the DOC had no duty to

provide her with the reversion as an accommodation. The employee bears the burden of showing

that there         was    a reasonable           accommodation    available.        Pulcino   v.   Fed. Express    Corp.,   141


Wn.2d 629, 643, 9.P. 3d 787 ( 2000),                    overruled on other grounds         by McClarty   v.   Totem Elec., 157


Wn.2d 214,            137 P. 3d 844 ( 2006).               Generally, whether an employer has made reasonable

accommodations is a question of fact for a jury; however, certain requests are, as a matter of law,

unreasonable. Pulcino, 141 Wn.2d at 644. For example, an employer is not required to reassign


an employee to a position that is already occupied, to create a new position, or to eliminate or

reassign essential             job functions. Pulcino, 141 Wn.2d              at   644.   And, an employer has no duty to



                                                                  16
No. 44295 -7 -II



provide    a new supervisor as             a reasonable    accommodation.         Snyder      v.   Med. Serv.   Corp.,   145


Wn.2d 233, 240 -41, 35 P. 3d 1158 ( 2001).


          Snyder is controlling here.              In Snyder, the employee' s conflicts and encounters with her


supervisor resulted       in        traumatic stress syndrome.
                               post -                                        145 Wn.2d   at   237. Although she could


perform the essential requirements of her job, she claimed that her mental condition prevented


her from being able to perform her job under her current supervisor. Snyder, 145 Wn.2d at 241.
The    court     rejected the        employee' s       contention     that   a new   supervisor was         a   reasonable


accommodation           her   employer       was    required   to   provide,   holding   that " if [the   employee]      can




perform the job, then she has no disability requiring accommodation simply because she has a

personality      conflict with    her   supervisor."     Snyder, 145 Wn.2d at 241.


          Here, Woods may have had mental conditions associated with, or aggravated by, her

relationship     with   Van Ausdle. But that alone does not require the DOC to reassign her to a new


position    or    provide      her   with    a   new   supervisor.      Woods has not presented any evidence

establishing the need for an accommodation for her mental health condition beyond working

with   Van Ausdle.        For example, all of her medical documentation states that it would probably

be best for her mental condition if she did not return to working in a stressful environment with

Van Ausdle, but         they do      not   include any   additional restrictions or accommodations.             Therefore,


the only accommodation Woods was requesting related to her mental condition was essentially a .

new supervisor which is, as a matter of law, an unreasonable accommodation. Thus, Woods has

failed to raise any genuine issue of material fact as to an element of a prima facie case for failure

to   accommodate.         Accordingly, the superior court did not err by granting DOC' s motion for

summary judgment.



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         4.      Retaliation


         Woods claims that the DOC retaliated against her by refusing her request for reversion

and ultimately terminating her employment in retaliation for filing grievances alleging

discrimination       and   posting         on   a   message       board   about      bullying   in the   workplace.        RCW


49. 60.210 protects employees from retaliation for engaging in protected activities opposing an

employer' s action forbidden by the WLAD.

         To survive a motion for summary judgment, the employee must first establish a prima

facie   case of retaliation.             Wilmot    v.   Kaiser Aluminum &           Chem.   Corp.,   118 Wn.2d 46, 68, 821


P. 2d 18 ( 1991).     To establish a prima facie case of retaliation, the employee must show that ( 1)

he   or she engaged        in   a   statutorily     protected     activity, ( 2) the employer to adverse employment


action, and (   3)   there was a causal link between the employee' s activity and the employer' s

adverse action.      Estevez        v.   Faculty    Club of the Univ. of Wash.,           129 Wn. App. 774, 797, 120 P. 3d

579 ( 2005).     If the employee successfully established a prima facie case for retaliation, the

burden shifts to the employer to demonstrate a legitimate, non -
                                                               retaliatory explanation for its

adverse     employment          decision.         Wilmot, 144 Wn.2d            at   68.   If the employer demonstrates a


legitimate, nonretaliatory reason for its action, the employee must produce evidence establishing

that the   employer' s stated reasons were pretext                  for discrimination. Wilmot, 144 Wn.2d             at   68. If


the employee fails to do so, no genuine issue of material fact exists and the employer is entitled

to judgment as a matter of law. Barker v. Advanced Silicon Materials, LLC, 131 Wn. App. 616,

624, 128 P. 3d 633, review denied, 158 Wn.2d 1015 ( 2006).


           Woods failed to          make     a prima      facie   case   for   retaliation.   Woods engaged in protected


activities by filing antidiscrimination grievances and exercising her First Amendment rights to



                                                                   18
No. 44295 -7 -II


engage    in internet   message     boards regarding harassment       and   bullying   in the   workplace.    In


addition,   Woods'   s separation    from   employment was an adverse employment action.             However,


Woods failed to establish a causal link between engaging in protected activities and the adverse

employment     action.       Woods relies exclusively on drawing inferences from the timing of the

protected   activity   and   the   adverse employment    action —essentially employing flawed post hoc
                hoc5

ergo propter            reasoning.    But, she fails to acknowledge that she initiated the process that


resulted in the adverse employment action.


         Woods affirmatively requested the reversion, presumably with the understanding of the

process in the CBA and the potential for being placed on the internal layoff list. Therefore, even

when viewing the evidence in a light most favorable to Woods, it cannot be said that Woods has

made a prima facie showing of retaliation. Woods has presented no evidence to establish a

causal    connection      between     the   protected   activity and the      adverse employment          action.

Accordingly, Woods has failed to present a prima facie case of retaliation, and summary

judgment was appropriate.


         Even if Woods established a prima facie case for retaliation, the DOC has established a


legitimate, non -discriminatory reason for the adverse employment action, and Woods has failed

to   establish pretext.      The DOC' s legitimate, nondiscriminatory reason for its action is that the

DOC simply followed the terms for             reversion established   by    the CBA,   which    it did.   Woods


appears to attempt to establish pretext by arguing that she requested reversion to a specific job

and conditioned her request for reversion by stating that her request did not become effective


5"
     After this, therefore, because of this" which is the flawed premise that because one event
follows another, it must be caused by the preceding event.



                                                        19
No. 44295 -7 -I1



until   she was    actually   placed    in the    requested position.        But there is nothing in the CBA that

establishes this is the appropriate procedure for voluntary reversion. The CBA does not state that

an employee may limit the reversion request to a specific job or specify that the reversion does

not become effective until the employee gets the job he or she is seeking to revert to.

Accordingly, Woods fails to present evidence establishing pretext, which is necessary to rebut

the DOC' s legitimate, nondiscriminatory               reason     for the   adverse employment action.     Summary

judgment was appropriate.


B.        CONTRACT AND TORT CLAIMS


          In addition to her WLAD claims, Woods filed claims for breach of contract and negligent

supervision and retention.          She alleges that the DOC breached the terms of the 2005 settlement


agreement by not establishing a training plan by September 30, 2005, and by failing to ensure

that    she   had input into her training         plan.    She also claims that the DOC was negligent in its

supervision and retention          of   Van Ausdle        as   a supervisor.    The superior court dismissed these


claims on the DOC' s motion for summary judgment.

          The superior court did not err by granting summary judgment as to Woods' s breach of

contract claim because Woods' s failed to raise a genuine issue of material fact as to whether

there    was a material    breach     of   the   settlement agreement.         And, the superior court did not err in


granting Woods' s motion for summary judgment as to the negligent supervision and retention

claims because they are duplicative of her WLAD claims.

          We    review a   trial   court' s   summary judgment        ruling    de   novo.   Torgerson v. One Lincoln


Tower, LLC, 166 Wn.2d 510, 517, 210 P. 3d 318 ( 2009).                       Summary judgment is appropriate only

if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any




                                                                20
No. 44295 -7 -II



genuine issues of material fact, and the moving party is entitled to judgment as a matter of law.

CR 56( c).       A material fact is one on which the outcome of the litigation depends in whole or in

part.                             Owners Ass 'n Bd. of Dirs.
        Atherton Condo. Apartment —                                                 v.   Blume Dev. Co., 115 Wn.2d 506,


516, 799 P. 2d 250 ( 1990).              We consider " all the facts submitted and the reasonable inferences

therefrom in the light            most   favorable to the nonmoving party."                Atherton, 115 Wn.2d at 516.


 The moving party is held to a strict standard. Any doubts as to the existence of a genuine issue

of material      fact is    resolved against   the moving party."           Atherton, 115 Wn.2d at 516.


          1.          Breach of Contract Claim


              Settlement      agreements are governed             by   general principles of contract       law." Lavigne v.


Green, 106 Wn.             App.   12, 20, 23 P. 3d 515 ( 2001).           To prove a breach of contract claim, Woods


has to    show    the     existence of (1)   a contract, ( 2)      a material breach of the terms of the contract, and


 3) damage resulting from the                material   breach.         St. John Med. Ctr.    v.   Dep' t   of Soc. &   Health


Servs., 110 Wn.            App.   51, 64, 38 P. 3d 383,       review     denied, 146 Wn.2d 1023 ( 2002).          A material


breach is often defined as one that substantially defeats the purpose of the contract. Mitchell v.

Straith, 40 Wn.           App.   405, 410, 698 P. 2d 609 ( 1985) ( citing 17 AM. JUR. 2D CONTRACTS § 504, at


981 ( 1964)).


              Woods claims that there was a material breach of the settlement agreement because she

did     not    have   a    collaborative    training   plan   established      by   September 30, 2005.          But, Woods


cannot show that the breach was material, nor can she show that the breach, if any, resulted in

damage.         First, the plain language of the settlement agreement does not require that the DOC


provide a       final,    collaborative    training   plan   by   September 30, 2005.        It does not even require that


a   training    plan      be implemented     by   September 30.           Rather, it simply requires that training needs



                                                                   21
No. 44295 -7 -II



to be   established.     Woods was receiving some form of training and training materials to study

during the period of time when there was no formal training plan. And, by December 5, she and

Van Ausdle had established a formal training plan that was implemented and later completed.

Woods has failed to demonstrate how the delay in establishing the formal training plan

substantially defeated the purpose of the contract, which was to provide Woods with training

during her trial service period.

         In addition, Woods has failed to demonstrate how the failure to establish the training plan

specifically   by   September 30, 2005,       resulted   in any damage.     She did not leave the records unit


because of lack of training, nor was lack of training the reason for her request for reversion or

her   ultimate separation     from   employment.        Therefore, Woods has not shown that, even if DOC


did breach the terms of the settlement agreement by not establishing the formal training plan by

September 30, the breach          caused     damage.     Therefore, the superior court properly granted the

DOC' s motion for summary judgment on the breach of contract claim.

         2.         Negligent Supervision and Retention Claims


         The superior court also dismissed Woods' s claims for negligent supervision and


retention.     Woods failed to establish a separate legal basis for her negligent supervision and


retention claims.      Accordingly, the superior court did not err in granting the DOC' s motion for

summary judgment.

         A claim for negligent supervision or retention can arise when an employer has a direct,

independent     duty "   to   control   an   employee    for the   protection   of a   third   person."   LaPlant v.


Snohomish      County,     162 Wn.      App. 476,      479, 271 P. 3d 254 ( 2011).             However, because an


employer is vicariously liable for an employee' s conduct when acting within the scope of



                                                           22
No. 44295 -7 -II



employment, a claim for negligent supervision or retention requires the plaintiff to show that the


employee acted outside            the   scope of employment.     LaPlant, 162 Wn.     App.   at   479 -80. " Under


Washington law, therefore, a claim for negligent hiring, training, and supervision is generally

improper when the employer concedes the employee' s actions occurred within the course and


scope of employment."             LaPlant, 162 Wn. App. at 480.

             Here, Woods has not established any legal basis to support a negligent supervision or

retention         claim.   The DOC has conceded that, if Van Ausdle' s conduct was improper, it is


vicariously liable for Van Ausdle' s conduct because she was acting within the scope of her

employment.           Therefore, Woods has not demonstrated that Van Ausdle was acting outside the

scope of her employment giving rise to a separate claim of negligent supervision or hiring.

                                                  ATTORNEY FEES


             Woods     requests    reasonable   attorney fees    under   RAP 18. 1.     However, Woods has not


cited   to any legal authority for awarding her attorney fees in this             case.   RAP 18. 1( a) allows this


court   to    award    attorney fees "[    i] f applicable law grants to a party the right to recover reasonable

attorney fees         or expenses." "     Argument and citation to authority are required under the rule to

advise us of         the   appropriate grounds    for   an award of   attorney fees."     Bishop of Victoria Corp.

Sole    v.   Corporate Business Park, LLC, 138 Wn.               App.    443, 462, 158 P. 3d 1183 ( 2007) ( citing


Austin       v.   U.S. Bank of Wash.,      73 Wn. App. 293, 313, 869 P.2d 404, review denied, 124 Wn.2d
1015 ( 1994)),        review. denied,     163 Wn.2d 1013 ( 2008).        Therefore, we do not consider Woods' s


request for attorney fees.




                                                            23
No. 44295 -7 -II



        We affirm the superior court' s order excluding Woods' s late -filed expert report, granting

the DOC' s motion for summary judgment, and dismissing all of Woods' claims. We also deny

Woods' s request for attorney fees.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




We concur:




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