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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

HENRY TANG, Individually,
                                                      DIVISION ONE
        Appellant/Cross-Respondent,
                                                      No. 73751-1-1
                      v.



CITY OF SEATTLE, a Washington                         UNPUBLISHED OPINION
Municipality; SEATTLE PUBLIC
UTILITIES, a division of the City of
Seattle,

        Respondents/Cross-Appellants.                 FILED: July 11, 2016


        Dwyer, J. — Henry Tang appeals from the summary dismissal of his

lawsuit against the City ofSeattle and Seattle Public Utilities (SPU).1 After being
demoted from senior civil engineer to associate civil engineer in 2013, Tang filed

suit, claiming retaliatory demotion in violation of the Washington Industrial Safety
and Health Act (WISHA), chapter 49.17 RCW. The superior court dismissed

Tang's lawsuit in its entirety. On appeal, Tang first contends that he set forth
sufficient evidence from which a jury could find that, prior to his demotion, the

City knew that he had asserted a WISHA-protected safety complaint and
punished him for doing so. Tang also contends that he states a claim for

        1Tang is employed by SPU, a division ofthe City ofSeattle. Unless otherwise noted, we
refer to both entities collectively as "the City."
No. 73751-1-1/2



common law wrongful demotion in violation of public policy. However, Tang's

evidence does not establish a prima facie case of statutory retaliatory demotion,

and a separate claim for common law wrongful demotion in violation of public

policy was neither pleaded nor argued in the superior court nor has it been

recognized as a cause of action in this state. Accordingly, we affirm.

                                          I


       In 1994, Tang was hired as an assistant civil engineer by the City.

       In 2000, Tang became a registered professional engineer, which required

him to pass an examination and pay the required fee.

       On May 5, 2008, Tang applied for reclassification as a senior civil

engineer. The City's senior civil engineer job description sets forth distinguishing
characteristics of the position, examples of assigned duties, and physical

demands of the work environment:

       description:
       Class Summary:

       Supervises or performs senior-level professional civil engineering
       work in the planning, design, construction, operation and
       maintenance of municipal public works, utilities and services
       projects.

       Distinguishing Characteristics of the Class:

       Positions in this advanced level class require an extensive
       knowledge of the principles, practices and procedures of civil and
       construction engineering, including the methods, materials,
       equipment and techniques used in civil engineering, construction
       and inspection; extensive knowledge and ability to perform civil
       engineering design, drafting, mapping and computations, as well as
       to read and interpret plans, specifications, codes, property
       descriptions, construction schedules, contracts and other
       construction documents; and a thorough knowledge of the area of
No. 73751-1-1/3



      practice. Some positions may require supervisory ability.

      Positions in this class may supervise and/or serve as project
      engineers/managers on the most technically complex, visible
      and/or high priority projects or programs. These projects require a
      high level of technical proficiency as well as
      coordinative/administrative responsibility. Most positions require
      the ability to coordinate the efforts of a multi-discipline, multi-
      agency project team to complete a defined assignment or CIP.[2]

      Guidelines available include engineering, drafting, design and
      construction standards, plans and specifications, architectural and
      engineering manuals, and relevant codes, ordinances, laws and
      regulations. Judgement [sic] is exercised in developing designs
      and design criteria, interpreting data from engineering documents,
      determining appropriate engineering methodology to apply, and
      originating, developing, and checking engineering projects through
      the various phases of planning, design, detail plans, specifications,
      estimates, contracts, construction, operation, and maintenance.

      Positions in this senior level class work under limited supervision,
      independently resolving most routine problems but informing the
      supervisor of unusual or controversial problems. The supervisor
      reviews project status and provides general guidelines and
      direction with respect to deadlines, departmental priorities and in
      situations involving unprecedented circumstances. This class may
      lead or supervise professionals and technicians or serve as a
      technical expert in a civil engineering specialty area.

      Contracts include inter and intra departmental, administrative,
      engineering and construction personnel, elected officials and their
      staff, other government agencies, contractors, consultants and
      the public to exchange information, coordinate work, answer
      questions and respond to complaints.

      EXAMPLES OF DUTIES:


         •   Supervises or serves as project engineer/manager on the
             most technically complex, visible and/or controversial projects
             or programs involving several design specialties including:
             planning studies of major pump stations, large pipelines
             projects, transmission line designs, hydroelectric generation
             facilities, substation structures, civil features of general plant

       "Capital Improvement Project."
No. 73751-1-1/4



            facilities, combined sewer overflow facilities, bridges and
            roadway improvements.
            Supervises and/or performs preliminary and final designs
            and/or prepares design criteria for roadways, bridges,
            structures, signal and lighting systems, retaining walls,
            electrical substations, switchyard and transmission
            structures, generation plant facilities, sewers, storm drains,
            water mains, transmission pipelines, pump stations,
            treatment facilities and other related public works projects.
            Supervises and/or prepares cost estimates and engineering
            and feasibility reports and studies for public works projects
            and utility improvements.
            Supervises and/or prepares contract documents, technical
            specifications and plans.
            Supervises and/or prepares and monitors project schedules.
            Supervises and/or prepares progress and final reports and
            estimates.
            Serves as divisional reviewer of final plans, specifications,
            estimates, and agreements. Coordinates and oversees work
            of contractors, affected public agencies and utility crews.
            Reviews and writes contract change orders; and negotiates
            and recommends financial arrangements for additional work
            done.
            Supervises activities of a design team in the preparation of
            preliminary and long range plans, schedules, estimates,
            budgets, detail final construction plans, specifications, and
            agreements. Oversees project progress from design through
            construction.
            Prepares and administers consultant and BPW construction
            contracts, monitors contract progress and reviews invoices
            for approval.
            Monitors the work of consultants and construction contractors
            to ensure compliance with contract provisions and scope of
            work.
            Supervises field inspections of the more complex work done
            by contractors to ensure compliance with plans and
            specifications.
            Supervises structural inspections and preparation of condition
            appraisal reports.
            Supervises material testing and analysis during design and
            construction phases.
            Supervises the development of plans, specification and
            instructions for the installation, operation, and maintenance of
            traffic signals, signing, lighting, pavement marking and design
No. 73751-1-1/5



            standards.
            Supervises the preparation of annual and long-range street
            and transportation improvement programs including need
            studies, cost estimation, environmental assessments,
            accident statistics analysis, traffic planning studies and grant
            applications.
            Supervises traffic engineering studies on traffic flow, traffic
            accident locations, parking, and other traffic-related matters.
            Supervises the review of shop drawings, material sources
            and specifications during construction.
            Serves as a technical expert in an engineering specialty area.
            Supervises environmental reviews of land development and
            improvement projects.
            Supervises hydraulic and/or hydrologic calculations and
            water supply and distribution system network analyses,
            including computer modeling.
            Supervises or prepares drawings of plans and details
            manually or with computer-aided drafting and design
            applications.
            Supervises the preparation of Local Improvement District cost
            distributions to assessment rolls and boundary maps.
            Coordinates contracts, designs, and new construction with
            other private and government agencies.
            Prepares a variety of reports, correspondence and official
            documents.
            Prepares budgets, workload forecasts, project variance
            reports, and progress reports.
            Participates in the selection, hiring and performance
            appraisal of subordinates.
            Meets with the public and representatives of other agencies
            and City departments to discuss current or proposed projects.
            Advises the legal staff of the City on complex engineering
            phases of court cases or legal problems relating to
            condemnation cases, appraisals of damages, and contract
            claims.
            Makes presentations and acts as team leader on special
            projects as assigned.
            Performs other related duties of a comparable level/type as
            assigned.

      WORK ENVIRONMENT/PHYSICAL DEMANDS:

             Most work is performed in a normal City work/office
            environment.
No. 73751-1-1/6



           •   Field assignments entail exposure to all types of weather,
               traffic, hazardous/toxic substances and work in or near
               construction sites.
           •   May be required to lift over 50 pounds.
           •   May be required to stand, walk, or bend for extended periods
               of time.
           •   May be required to work nights, evenings, weekends, and/or
               holidays.
           •   Overnight travel may be required.

       comments:
       Class history: Class adopted January 2, 1991.

       This description was prepared to indicate the kinds of activities and
       levels of work difficulty required of positions in this class. It is not
       intended as a complete list of specific duties and responsibilities.

(Emphasis added.)

        In a March 4, 2009 classification determination report, the City

simultaneously recommended and approved Tang's reclassification. The City

also provided that the reclassification was retroactive to November 11, 2008.
        In early 2011, Tang joined the solid waste and alternative contracting
group. Tang's immediate supervisor was Daniel Enrico. At this time, the group's
manager was Fred Aigbe. Enrico attested that, under his supervision, "[o]ne of
Tang's assignments in 2011 was to support the initial 'options analysis'^ phase
for the Halladay Decant Facility Project"4 (Halladay Project). The Halladay


        3Enrico explained that "[t]he options analysis is the first phase ofa project, in which
various options are reviewed and one is selected based on financial, community, and
environmental impacts."
        4 Enrico described the Halladay Project as follows:
        The Halladay Decant Facility receives sediment from storm drains and dries the
        material to reduce its weight before taking itto a landfill. It covers an area about
        70 feet long and 70 feet wide. The Halladay Project is considered a small
        project, with a construction budget ofabout $350,000, and primarily involved
        installing a canopy over the pit into which the sediment is deposited so that
No. 73751-1-1/7



Project was located approximately 500 feet from the Interbay landfill, which is

now closed.5

       Judith Cross, the director of facilities and real property service at SPU,

was a "[sjpecifier" on the Halladay Project. Tang attested that "[t]he Specifiers

are essentially the 'client' on the job. They are the ones that Mr. Enrico and I

answer to on the Halladay Project."

       In a January 17, 2013 memorandum, which was addressed to both Enrico

and Aigbe, Cross expressed "my concerns related to Henry Tang['s], Sr. Civil

Engineer, Project Management and Engineering Division failure to meet standard

performance expectations of a Project Manager for the Halladay Vactor Decant

Facility Improvements Project." Cross continued, stating, "I have observed and

directly experienced Henry Tang's poor performance . . . from November 2011 to
December 2012." She then opined that Tang had exhibited "poor performance

issues" in areas relating to job specific skills, professional judgment,

accomplishing tasks, quality of work, teamwork, and personal accountability.

Ultimately, she demanded that "[a]s a result of Henry's performance . . ., Ido not
want Henry assigned as a Project Manager to any future Facilities capital

improvement projects."

       Consistent with the views expressed in Cross's memorandum, Enrico

testified that "[bjased on Tang's past performance, Cross did not want Tang


        rainwater would not fill the pitand cause overflow, plus grading, paving, removal
        of contaminated soils, and installing a drainage system and fence.
        5Min-Soon Yim, a utility manager at SPU, testified that the Interbay landfill "is now
covered by a golf course."
No. 73751-1-1/8



assigned as the Project Manager when the Halladay Project entered its next

phase in late 2011. She was critical of Tang in a group meeting in which I, Tang,

and others were in attendance." In this meeting, Enrico defended Tang. Enrico

eventually convinced Cross to accept Tang's assignment to the next phase.

However, Enrico testified, "Cross's strong resistance to working with Tang

caused me to start paying closer attention to Tang's performance and

attendance."

        In April 2011, Tang wrote a memo to the file regarding a "review of the in-

house labor estimate" for the Halladay Project.6 Therein, Tang provided general

feedback on the current state of the project, the scope of the construction work,

and the soft costs involved in completing the project. In a section discussing how

to optimize soft costs, Tang stated, "[t]he Project Engineer will be responsible for

the inter-discipline design integration. An individual with strong experience would

probably keep the costs down." Tang did not assert any WISHA-protected safety

complaint in this memo.

        In February 2012, Tang was assigned as the project manager on the

Halladay project.7



        6 This memorandum was addressed as being "[f]rom" both Tang and his colleague, Tom
Fawthrop.
        7"Self-serving affidavits contradicting prior depositions cannot be used to create an issue
of material fact." McCormick v. Lake Wash. Sen. Dist. 99 Wn. App. 107, 111, 992P.2d511
(1999); see also. Klontz v. Puaet Sound Power & Light Co.. 90 Wn. App. 186, 192, 951 P.2d 280
(1998) ("'When a party has given clear answers to unambiguous [deposition] questions which
negate the existence of any genuine issue of material fact, that party cannot thereafter create
such an issue with an affidavit that merely contradicts, without explanation, previously given clear
testimony.'" (alteration in original) (quoting Marshall v. AC&S. Inc., 56 Wn. App. 181, 185, 782
P.2d 1107(1989))).

                                               -8-
No. 73751-1-1/9



       On March 6, Enrico issued Tang two memoranda.

        In the first, entitled "Coaching Memo - Performance Standards," Enrico

informed Tang that "[t]he purpose of this memo is to inform you that you continue

to not meet performance standards in several areas and to provide you with my

observations regarding your work performance." Enrico explained that,

"[cjandidly, my impression is that your work production is lacking, and does not

meet section expectations for a full time Sr. Civil Engineer," and that "[m]y

observation of your meeting performance is that you are often late and

unprepared." In summation, Enrico stated,

        [w]e have had at least three conversations regarding your
        performance in the last year including an hour on February 29,
        2012. I believe I have been consistent in my message to you that
        your performance is not up to par of a Senior Civil Engineer and I
        am willing to provide support to you in order to correct the situation.
        I would have to say that your job execution is deficient, and needs
        substantial improvements in the areas of attendance, technical
        skills, quality assurance, client service and meeting deadlines.

        My expectation is that you will take whatever steps you deem
        necessary to ensure you are meeting expectations. Further, I
        expect that you will adhere to your schedule and report your work
        time accurately, ensuring that you are claiming pay only for hours
        you actually worked, or are covered by some appropriate leave.
        Continued failure to meet performance standards in these areas




        On appeal, Tang attempts to create a question of fact with regard to when he became the
project manager on the Halladay Project.
          In a January 2015 deposition, Tang was questioned about his role on the Halladay
Project. In response to a question asking about when he was assigned to the project, he
testified, "[tjhe project was not assigned to me until February of 2012." Later, in response to a
question asking what his assigned role was, Tang testified that he was "a project manager."
          In a June 2015 declaration, Tang testified, "I became the project manager in early 2011
on the Halladay Project."
      We credit Tang's sworn deposition testimony indicating that he became the project
manager in February 2012 and do not credit his later declaration testimony to the contrary.
No. 73751-1-1/10



      may result in corrective action, up to and including termination of
      your employment.181

       In the second, entitled "Expectations for Senior CE/Project Manager,"

Enrico stated both that "[t]he intent of this memo is to provide you with an

'expectations' document designed to point out and reinforce my expectations of

your performance as a Senior CE," and that "this should provide the two of us

with a roadmap to make improvements over the next year." Enrico then set forth

his specific expectations of Tang in certain areas including work hours and

attendance, overall performance, conduct leading up to and during meetings,

communication, and training. In summation, Enrico stated,

       Henry I want to be positive and provide all the support you need to
       be successful. This memo is to provide a baseline for my
       expectations as your supervisor and provide a timeline by which we
       can resolve some of these lingering issues. Ifthere are any
       extenuating circumstances please let me know.[9]
       On March 26, Enrico conducted a performance review of Tang. Tang

received "below standard" ratings in all areas except "safety," in which he

received a "meets standard" rating. Enrico expressed his opinion regarding

Tang's performance.

       Henry is a likeable guy with many good qualities including
       intelligence. Ifind him to[o] resistant to coaching that borders on
       outright refusal, and that has been problematic over the last year.
       I've mentored him many times to maintain communications via e-
       mails, agendas and meeting minutes and by and large he ignored
       my advice which resulted in negative feedback from one of his main
       clients.


       8"Refuse to sign" is written on the "[ejmployee's signature" line of the coaching
memorandum.
       9Again, "[rjefuse to sign" is written on the "[ejmployee's signature" line ofthe
expectations memorandum.

                                              -10-
No. 73751-1-1/11




      Candidly, my impression is that Henry's work production is lacking,
      and does not meet section expectations for a full time Sr. Civil
      Engineer.

      My observation of his meeting performance is that he is often late
      and unprepared. I don't consistently see agendas from him in my
      "inbox" and meeting minutes are rarely distributed as I have
      requested repeatedly.

      Client/Specifier service is at a low-point. The Facilities Group has
      consistently provided me with "unsatisfactory feedback" in terms of
      his timeliness and quality assurance.

      Since the beginning of March 2012, Henry has been making good
      progress in achieving higher performance. I hope that he uses this
      evaluation of his 2011 performance in a positive manner and he
      continues to progress throughout 2012 and beyond.

      My plan is to have another Performance Review in 6-months to
      assess Henry's progress.

      Shortly thereafter, Enrico's performance review of Tang was examined by
a manager. The manager agreed with the assessment and feedback that Enrico

had provided to Tang.

      We all like Henry and want him to succeed. I generally concur with
      Dan [Enrico's] assessments of Henry's performance; Ithink the
      feedback are constructive. I applaud Henry for acknowledging that
      there are opportunities for improvements in some aspects of his
      work. I want to assure Henry that the SPU Management is
       prepared/readied to provide him with the resources/tools he needs
      to succeed! The intent of our coaching is to position Henry for
       success!

       On April 2, Enrico issued Tang a memorandum documenting that Tang
had received a verbal warning for insubordination. Therein, Enrico stated that

"[t]his memo documents the Verbal warning you received for your repeated
refusal to follow my instructions to you as your supervisor." Enrico then both

                                      -11
No. 73751-1-1/12



specified the occasions on which Tang had not followed his instructions and

reiterated his expectations of Tang. He continued, stating, "[yjour behavior and

refusal to follow my instructions violates these basic workplace expectations and

amounts to insubordination. This is not acceptable and needs to stop

immediately." Further, he stated, "[a]s we have discussed several times, it is

important for you to begin to demonstrate that you are able to perform your job at

the established standards, be at work as scheduled, and use your work time

productively." In closing, Enrico stated,

       I hope that this warning will help you recognize the severity of your
       actions, and encourage you to make the changes necessary to
       correct your behavior. This verbal warning will be placed in your
       personnel file. Additional incidents of insubordination, or continued
       failure to meet performance standards and workplace expectations
       may result in further disciplinary action, up to and including
       termination of your employment^101

       On April 11, Min-Soon Yim, a utility manager at SPU, tested the soil

surrounding the Halladay Project site for the presence offlammable gas.11 The
test results indicated that the soil contained methane gas. Yim communicated

these test results in an e-mail that was addressed to Tang and his colleagues

Cody Nelson and Jeff Neuner.

       On May 23, the Halladay Project team held a meeting regarding "Methane

and Hazmat Screening." The notes from this meeting indicate that the team




        10 Again, "[rjefused to sign" is written on the "[ejmployee" signature line of this
memorandum.
        11 Itwas Tang's colleague, Cody Nelson, who arranged for the flammable gas testing to
be performed at the Halladay Project site, not Tang. Nelson worked in conjunction with Gail
Coburn to determine the type of testing to be performed.

                                                -12-
No. 73751-1-1/13



discussed that "[a] Methane Mitigation Plan stamped by [a] PE [Professional

Engineer] would be required (for permitting)."

       On August 31, Enrico issued Tang a written reprimand for insubordination

and frequent tardiness. Therein, Enrico informed Tang that "[y]ou are receiving

this written reprimand because of continued issues with you pertaining to

attendance and performance." Enrico then set forth specific examples of Tang's

"persistent insubordination with regard to these concerns." Enrico also informed

Tang that "[g]oing forward I would like to propose that we approach the

completion of your workload in a more controlled fashion." This required that

Tang report his progress to Enrico during weekly one-on-one meetings. In so

requiring, Enrico informed Tang that he was "dedicated to provide every kind of

support as your supervisor so we can shore up your communications and work

production." In closing, Enrico stated,

       This written reprimand will be placed in your personnel file.
       Continued failure to meet performance standards and workplace
       expectations may result in further disciplinary action, up to and
       including termination of your employment.1121

       That same day—during a meeting attended by Tang, Enrico, and Aigbe—

Enrico assigned Tang the civil site design work on the Halladay Project.13 Tang

refused to perform the assigned task.


       12 Again, "[rjefused to sign" is written on the "[ejmployee" signature line of the written
reprimand.
       13 Enrico described the type of design work required on the Halladay Project.
       Civil site design covers basic tasks to get a site's surface ready for construction.
       It does not include things like electrical, structural, or mechanical engineering.
       For Halladay, the civil site design included grading, paving, soil removal, a water
       meter relocation, and installing a drainage system and a fence. That is basic
       stuff that a Senior Civil Engineer at SPU should be readily able to complete.

                                               -13-
No. 73751-1-1/14



         On September 6, Enrico again met with Tang. During this meeting, Tang,

once again, refused to perform the civil site design work.

         Later that same day, Tang sent Enrico an e-mail purporting to document

their conversation during the meeting. Subsequent e-mail between Enrico and

Tang regarding this meeting spanned many days. Therein, Tang reiterated his

position that he did not "have the background design experience and

competency to perform the engineering design for this project; and it would be

inappropriate to do so." Tang cited the Washington Administrative Code14 as

authority for his assertion. In response, Enrico reiterated that he "believe[d]

[Tang] d[id] have the background to perform the civil site work," and that he

"offered to work side by side with [Tang] and complete the design together as a

team."

         On September 21, Enrico wrote a memorandum to Linda De Boldt, the

deputy director of the project delivery branch. Therein, Enrico recommended that

Tang be suspended for three days without pay "for insubordination and poor

performance." Enrico elaborated, stating that, "[p]rimarily, this suspension is

related to Henry's repeated refusals to accept a task as a Senior Civil Engineer."

Specifically, Enrico stated that "Henry has repeatedly refused to perform design

work on an engineering assignment for the Halladay Decant Project."


         Getting that work done did not depend on having a methane mitigation plan in
         place.
        14 Tang referenced WAC 196-27A-020, which sets forth "[fjundamental canons and
guidelines for professional conduct and practice." The relevant provision, WAC 196-27A-
020(2)(d), provides that registered professional engineers "shall be competent in the technology
and knowledgeable of the codes and regulations applicable to the services they perform."

                                             -14-
No. 73751-1-1/15



          That same day, in a memorandum addressed to SPU director Ray

Hoffman, Boldt agreed with Enrico's recommendation.

          In late October, Tang accepted the civil site design work on the Halladay

Project.

          Thereafter, Tang went on vacation. Enrico attested that, upon Tang's

return, "he did little work on Halladay—or any other project—despite my repeated

inquiries."

          In a February 5, 2013 letter, Boldt informed Tang that several employees,

including Enrico, were recommending that he be demoted from senior civil

engineer to associate civil engineer. She explained that "[t]his recommendation

is based on your continued failure to perform the responsibilities required of a

Senior Civil Engineer."

          On February 26, Tang and his union representative attended a

Loudermill15 hearing regarding the recommended suspension and demotion.

          On April 2, SPU director Hoffman sent Tang a letter informing him that "I

have decided to uphold your management's recommendation for demotion."

Tang's demotion was effective on April 10, 2013. Hoffman found that Tang

"repeatedly refused to do the work that was needed" and that whether that

"refusal was due to a lack of ability, or simple unwillingness to do your job, there

has been no appreciable work product from you over the last 2 years to establish

you have been performing as a Senior Civil Engineer." Hoffman specifically


          15 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494
(1985).

                                               -15-
No. 73751-1-1/16



found that none of the work Tang had been assigned to do had been "unethical

nor unsafe." This latter finding was made in response to Tang's claim—raised for

the first time at the hearing—that his refusal to do the assigned work was related

to safety and the presence of methane.

       In May, Tang filed a WISHA complaint with the Department of Labor and

Industries (the Department). Therein, Tang described the City's alleged act of

retaliation as follows:


       I am being retaliated against for refusing to perform engineering
       design that could have put the public and workers at risk of an
       uncontrolled gas explosion. . . .I informed that only a licensed
       engineer with qualifying technical expertise and competency should
       perform the design because of potential risks of explosion and
       safety to the public. The employer, instead, reprimanded me for
       insubordination for refusing to comply with management's
       directives to perform the assigned engineering design work. Other
       adverse actions include change of responsibilities, office relocation,
       and demotion.


       In response to Tang's complaint, the Department conducted an

investigation. Following this investigation, Susan Rue, the Department's

investigations program manager, concluded, "there is insufficient evidence to

substantiate that discrimination, as defined by the WISH Act, occurred." Tang

appealed Rue's decision to the Department director, Joel Sacks, who affirmed

Rue's conclusion.

       In June, Yim and Enrico met and established a methane mitigation plan

for the Halladay Project site.16

       In October 2013, Tang filed suit. In his complaint, Tang pleaded the

       16 When deposed, Yim testified that another person was also present at this meeting. In
response to a question asking if this person was an engineer, Yim testified, "I think so."

                                            -16-
No. 73751-1-1/17



following causes of action:

                                4.0     CAUSES OF ACTION

       As several causes of action against Defendant/Respondent, severally or
alternatively, Plaintiff/Petitioner alleges as follows:

       (Discrimination under RCW 49.17; Retaliation; Failure to follow the law)

       4.1     Mr. Tang re-alleges and incorporates by reference paragraphs 1.1
               through 3.8J171

       4.2     Mr. Tang was correct or reasonably believed he was correct in
               requiring certain elements be necessary for the completion of the
               Halladay Decant Project. Mr. Tang's professional engineering
               license was at stake and his professional determinations were in
               line with the legal requirements and professional requirements for
               the project. Mr. Tang was following the law as he read and
               understood the purpose of the statute requiring a Methane
               Mitigation Plan under certain circumstances for the proposed
               construction within an approximate region from a landfill.

       4.3     Mr. Enrico's actions toward Mr. Tang were as a direct result of Mr.
               Tang's decisions on the project and his reporting his decisions to
               others, and Mr. Tang raising these issues with the union and with
               the Department of Labor and Industries.

       4.4     RCW 49.17.160 provides in pertinent part:

               In any such action the superior court shall have jurisdiction, for
               cause shown, to restrain violations of subsection (1) of this section
               and order all appropriate relief including rehiring or reinstatement of
               the employee to his or her former position with back pay.

       4.5     Mr. Tang seeks all relief available to him under RCW 49.17.160
               and any other law applicable for damages related to his decisions
               and the retaliation that followed on the Halladay Project.

       4.6     Mr. Tang seeks reinstatement of his job position as Civil Engineer,
               Senior. Mr. Tang seeks back pay for the demotion such that his
               pay and benefits would be as if he was a Civil Engineer, Senior at
               all times. Mr. Tang seeks reinstatement of his employment records

       17 Paragraphs 1.1 through 3.8 set forth the parties to the action, jurisdiction and venue,
and the general factual background.

                                              -17-
No. 73751-1-1/18



               to be as they were prior to this action. Mr. Tang seeks a mandatory
               injunction requiring the City of Seattle to stop all discriminatory and
               retaliatory actions against him.

      The City later moved for summary judgment on the merits of Tang's

statutory retaliation claim. The superior court granted the motion, dismissing

Tang's lawsuit.

      Tang now appeals.

                                           II


      Tang first asserts that the superior court erred by granting summary

judgment in favor of the City on his statutory retaliation claim pursuant to RCW
49.17.160. This is so, he asserts, because an issue of fact exists as to whether

his supervisor, Daniel Enrico, had actual knowledge of his safety complaints

regarding the presence of methane gas in the soil surrounding the Halladay
Project site, which is a fact material to establishing his retaliatory demotion claim.
We disagree.

       We review a trial court's grant of summary judgment de novo. Camicia v.

Howards. Wright Constr. Co., 179 Wn.2d 684, 693, 317 P.3d 987 (2014).

Summary judgment is appropriate only when there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. CR
56(c); Camicia, 179 Wn.2d at 693. When making this determination, we consider
all the facts and make all reasonable, factual inferences in the light most

favorable to the nonmoving party. Young v. Kev Pharms.. Inc.. 112 Wn.2d 216,

226, 770P.2d 182(1989).



                                           18
No. 73751-1-1/19



        WISHA provides, in pertinent part, that "[n]o person shall discharge or in

any manner discriminate against any employee because such employee has filed

any complaint or instituted or caused to be instituted any proceeding under or

related to this chapter." RCW 49.17.160(1).

        A similar provision is found in Washington's Industrial Insurance laws.

See RCW 51.48.025(1). In an action brought under that statute, when a plaintiff

who claims retaliation for filing or expressing an intent to file a workers'

compensation claim lacks direct evidence of retaliation, the burden-shifting

analysis articulated in Wilmot v. Kaiser Aluminum and Chemical Corp., 118

Wn.2d 46, 821 P.2d 18 (1991), is used to determine the proper order and nature

of proof on summary judgment. The same burden-shifting scheme is

appropriately utilized to analyze Tang's appellate claims for relief.18
        Thus, Tang must first articulate a prima facie case of retaliation. To do so,

Tang must show (1) that he either exercised or expressed an intent to exercise a

statutory right that is protected by WISHA, (2) that the City engaged in an

adverse employment action against him, and (3) that there was a causal link


         18 In his brief, Tang cites to Ellis v. City of Seattle. 142 Wn.2d 450, 13 P.3d 1065 (2000),
as setting forth the proper method by which to analyze his statutory retaliation claim. His reliance
on Ellis is mistaken.
          First, the only issue that our Supreme Court reviewed in EINs was the summary dismissal
of Ellis's common lawwrongful discharge in violation of public policy claim. Itdid not review the
dismissal of Ellis's statutory retaliation claim brought pursuant to RCW 49.17.160. See EHis, 142
Wn.2dat458.
        Second, the court analyzed Ellis's claim utilizing the Perrittanalysis. The Perritt analysis
is applicable when a plaintiff's claim does not fit neatly within the tort ofwrongful termination in
violation of public policy. Becker v. Cmtv. Health Svs.. Inc.. 184 Wn.2d 252, 259, 359 P.3d 746
(2015) (citing Gardner v. Loomis Armored. Inc.. 128Wn.2d 931, 941, 913 P.2d 377 (1996)) (citing
Henry H. Perritt, Jr., Workplace Torts: Rights and Liabilities § 3.7 (1991)). Because Tang's
claim is a statutory claim pursuant to RCW 49.17.160 (and not based on the common law tort of
wrongful termination in violation of public policy), the Perritt analysis is inapplicable.

                                               -19-
No. 73751-1-1/20



between his exercise of the statutory right protected by WISHA and the adverse

employment action, in this case that the City's motivation for demoting Tang was

his exercise of or intent to exercise the statutory right.19 See Wilmot, 118 Wn.2d

at 68-69.

      To demonstrate the third element—the requisite causal link—Tang must

present sufficient evidence tending to show that the protected activity was a

cause of the adverse employment action. See Wilmot, 118 Wn.2d at 69-70. In

other words, that Tang's exercise or intent to exercise a statutory right protected

by WISHA was "a significant or substantial factor" in bringing about the adverse

employment action. See Wilmot, 118 Wn.2d at 71.

       Further, "[essential to a causal link is evidence that the employer was

aware that the plaintiff had engaged in the protected activity." Cohen v. Fred
Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982). "'At a minimum, a plaintiff must

generally establish that the employer was actually aware ofthe protected
expression at the time it took adverse employment action.'" Clover v. Total Svs.
Servs.. Inc., 176 F.3d 1346, 1354 (11th Cir. 1999) (quoting Goldsmith v. City of

Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993)): see also Kahn v. Salerno, 90 Wn.

App. 110, 131, 951 P.2d 321 (1998) (requiring that the employee establish that
"the employer knew of the opposition activity" in a retaliation case).
       The parties agree that, given the City's demotion of Tang from senior civil
engineer to associate civil engineer, he met his burden as to the second element

       19 Proof ofthe prima facie case may be by circumstantial evidence. See Wilmot, 118
Wn.2d at 69.


                                           -20-
No. 73751-1-1/21



(adverse employment action). The City argues that Tang did not meet his

burden as to the other two elements both because he did not engage in a

statutorily-protected activity prior to his demotion and because there is no causal

link between any statutorily-protected activity and Tang's demotion. We agree.

       In both his appellate briefing and at oral argument before this court,

Tang's counsel alleged that Tang, on numerous occasions prior to his demotion,

engaged in a WISHA-protected activity by complaining to Enrico about safety

concerns regarding the presence of methane gas in the soil surrounding the

Halladay Project site.20 However, to the extent that Tang asserts that he

engaged in an activity that was protected by WISHA on each of these occasions,

he nonetheless fails to set out the requisite causal link showing that Enrico

actually knew of any such complaint prior to Tang's demotion.21


        20 When deposed, Tang was questioned about whether he had asserted safety concerns
as a reason for not performing the assigned design work. In response to a question asking
whether, in June and July of 2012, Tang recalled raising safety concerns as a reason for not
performing the work, Tang testified,
                Yeah, I don't - I cannot remember going in depth about the requirement
       for a methane mitigation plan or any of the details. I have mentioned the
       methane mitigation plan as - okay. This design - okay. This design is outside -
       this design is outside of my competency area, methane mitigation plan I know
       nothing about. And then, you know, because - because a lotof these
       conversations has been recurring, has been discussed at length, there was really
       no need to go into a lecture about a methane mitigation plan every single time.
       Kind of say, okay, it's a multidisciplinary design, it's inappropriate for me to do it,
       and - and that's it. Sometimes - sometimes methane mitigation plan isn't
       mentioned because that's always on the radar.
                So in response to your question, at - at times I have mentioned methane
        mitigation plans in these discussions, I'm just not sure during those times where I
        mentioned the WAC or made reference to the professional engineer code of
        conduct, that I have talked about the methane mitigation plan specifically in those
        particular meetings.
        21 Tang places great significance on Enrico's alleged knowledge of his WISHA-protected
safety complaint. However, Enrico was not the ultimate decision-maker with regard to whether
Tang was to be demoted. This decision rested with Hoffman. Thus, even had Tang shown that
Enrico had actual knowledge of a WISHA-protected safety complaint, it is pure speculation to

                                               -21 -
No. 73751-1-1/22



       Tang asserts that he "first told Enrico about his concerns in writing in

comments on an April 2011 memorandum to the Halladay project file [that]

Enrico could access at any time." Br. of Appellant/Cross-Resp't at 8. At oral

argument, his counsel maintained that Tang first engaged in a WISHA-protected

activity "when he wrote the memo to the file saying we need to have a

consultant—a third party—do the design for the Methane Mitigation Plan." Wash.

Court of Appeals oral argument, Tang v. City of Seattle, No. 73751-1-1 (June 7,

2016), at 2 min., 55 sec. (on file with court). To the extent that such an activity—

a memo to a file—could constitute a WISHA-protected activity, Tang fails to

make the requisite showing of a causal link between filing the memorandum and

his demotion. Indeed, the memorandum does not mention any safety concern at

all, let alone one that was asserted by Tang. Additionally, there is no indication

that Enrico read the memorandum.22

        Tang also asserts that his "concern for safety was noted by Enrico in his

March 2012 employee review." Br. of Appellant/Cross-Resp't at 38. Specifically,

Tang avers that, "it is clear that Enrico was well-aware of Tang's concern about


infer that a person having knowledge of an employee's protected activity actually told the
decision-maker about the protected activity. See Clover, 176 F.3d at 1355 (concluding that
'"could have told' is not the same as 'did tell'"). We nevertheless analyze Tang's claims, as
briefed and presented.
        22 At oral argument, Tang's counsel was asked who was aware that Tang had written this
memorandum. Wash. Court of Appeals, supra, at 3 min., 9 sec. His counsel responded,
"[ajnyone and everyoneon that project." Wash. Court of Appeals, supra, at 3 min., 13 sec.
When questioned further, Tang's counsel stated that "his supervisor, in particular" was aware that
Tang had written the memo to the file. Wash. Court of Appeals, supra, at 3 min., 17 sec. When
asked when Tang's supervisor became aware ofthis memorandum, his counsel stated, "[i]n April
of 2011, if the supervisor was doing his job he would have (inaudible) in the file." Wash. Court of
Appeals, supra, at 3 min., 26 sec. To the contrary, the mere existence of a memorandum
directed to a file does not, of itself, constitute a WISHA-protected safety alert nor does it establish
that any particular person—or any person at all—actually read the memo.

                                                -22-
No. 73751-1-1/23



safety, because within a performance review fraught with 'Below Standard'

ratings, Tang received a 'Meets Standards' rating in the area of 'Safety,'

indicating that he was contributing to and promoting a safe work environment."

Br. of Appellant/Cross-Resp't at 14-15. To the contrary, a "meets standards"

performance rating in the area of "safety" does not establish either the existence

of a WISHA-protected safety alert—known to someone other than Tang—or a

causal link between such an activity and Tang's demotion.

      At oral argument, Tang's counsel asserted that "one time when we can flat

out prove that Mr. Enrico knew that Mr. Tang was refusing to do the project was

when he got the methane levels tested in April of 2012." Wash. Court of

Appeals, supra, at 4 min., 2 sec. To the contrary, an e-mail sent by Cody Nelson

established that it was Nelson who arranged for the methane gas testing at the

Halladay Project site. To the extent that such an activity—the act of arranging for

methane gas testing—could constitute a WISHA-protected activity, an act

performed by Nelson—who is someone other than Tang—does not establish

either that Tang engaged in a WISHA-protected activity or a causal link between

that activity and Tang's demotion.

       In his briefing, Tang also asserts that he engaged in a WISHA-protected

activity during a May 23, 2012 meeting. Specifically, he asserts that his safety

concern was reflected in "[m]eeting minutes from a May 23, 2012 meeting

regarding 'Methane and Hazmat Screening' for the Halladay Project [which]

noted that 'a Methane Mitigation Plan stamped by [a] PE would be required (for



                                         23
No. 73751-1-1/24



permitting).'"23 Br. of Appellant/Cross-Resp't at 38. Again, even if this somehow

constituted a WISHA-protected activity, Tang does not make the requisite

showing of a causal link between these meeting minutes and his demotion. First,

the meeting minutes (stating the need for a methane mitigation plan) do not, by

themselves, reflect that Tang asserted any WISHA-protected safety complaint.

Second, the minutes indicate that Enrico was not in attendance, again failing to

connect him to any WISHA-protected safety complaint allegedly asserted by

Tang at this time.

       In his briefing, Tang additionally contends that the content of a June 2012

risk register and consultant contract risk management checklist proves that he

engaged in a WISHA-protected activity. Specifically, he avers that this checklist

"noted environmental and bodily injury hazards." Br. of Appellant/Cross-Resp't at

38. Again, Tang's claim fails. First, that the document notes "environmental and

bodily injury hazards" does not prove that Tang asserted a WISHA-protected

safety complaint regarding the presence of methane gas at the Halladay Project

site. Second, Tang does not show that Enrico was aware of the checklist or—

more importantly—that anything therein would have notified him that Tang had

made a WISHA-protected safety complaint.

        In his briefing, Tang also asserts that his WISHA-protected activity is

reflected in a June 28, 2012 memorandum. Specifically, he avers that this


       23 When deposed, in response to a question asking whether itwas Tang's conclusion that
a methane mitigation plan was necessary, or whether itwas his colleagues, Gail Coburn and Jeff
Neuner, who came to this conclusion, Tang testified, "[i]t was their conclusion that it was
necessary based on the scope of the project." Again, proof of actions taken by others does not
prove the existence of an action taken by Tang.

                                               -24-
No. 73751-1-1/25



memorandum, which was addressed to Tang from SPU's geotechnical

engineering department, stated,

      A methane monitoring and mitigation plan should be developed
      and implemented. Since hydrogen sulfide can occur in areas that
      have high methane readings, consideration should be given to the
      potential for hydrogen sulfide and associated worker safety.

Br. of Appellant/Cross-Resp't at 39. Tang's receipt of this memorandum can in

no way be characterized as a WISHA-protected activity. Moreover, the

memorandum itself does not reference any WISHA-protected safety concern, let

alone any concern allegedly asserted by Tang. Furthermore, considering that

the memo was addressed to Tang, not Enrico, it does not establish that Enrico

had knowledge of any supposed WISHA-protected claim asserted by Tang and

memorialized in that memo.

       In his briefing, Tang also asserts that he engaged in a WISHA-protected

activity when he notified the Department of Ecology (DOE) about the hazardous
substances at the Halladay Project site in July 2012. Specifically, he claims that

"in his capacity as the Project Manager of the Halladay Project [ ], Tang notified

the DOE of the hazardous substances at the site, and provided McDonald, the

SPU Specifier with the notice." Br. ofAppellant/Cross-Resp't at 39. Again, to the
extent that Tang engaged in a WISHA-protected activity by reporting the

presence of hazardous substances to DOE, he fails to make the requisite
showing of a causal link between this act and his demotion. First, his act of
notifying the DOE, by itself, does not establish eitherthat he was asserting a
WISHA-protected complaint or that Enrico had actual knowledge of such a


                                       -25-
No. 73751-1-1/26



complaint. Indeed, nothing in that memo connects the possible existence of

hazardous substances to Tang's refusal to do the work assigned him. Second,

by Tang's own admission, he provided McDonald, not Enrico, with the notice.

Thus, again, there is no indication that Enrico had actual knowledge of any

protected activity on Tang's part.

      Tang next asserts that he engaged in a WISHA-protected activity when he

"sought and received approval for an engineering company to perform the design

work related to construction of the project to mitigate harm from the methane gas

exposure and other toxic waste or chemicals." Br. of Appellant/Cross-Resp't at

39-40. At oral argument, Tang's counsel maintained that Tang engaged in a

WISHA-protected activity when "he obtained the authority from the client," Wash.

Court of Appeals, supra, at 2 min., and when "he obtained, he put that in the

project management plan and he obtained financial approval for that—in the

summer—in July of 2012." Wash. Court of Appeals, supra, at 2 min., 7 sec.

Again, even if this somehow constituted a WISHA-protected activity, Tang does

not make the requisite showing of a causal link between this act and his

demotion. First, the act of receiving authorization and financial approval for

another entity to perform the design work, by itself, does not indicate that Tang

asserted a WISHA-protected safety complaint. Second, because Tang allegedly

received this authorization from the client (and not from Enrico), there is no

indication that Enrico had actual knowledge either that such an arrangement had

been made or that it allegedly arose from a WISHA-protected action of Tang's.



                                         26-
No. 73751-1-1/27



       At oral argument, Tang's counsel argued that Tang made a WISHA-

protected safety complaint in a series of e-mails in August and September of

2012. Tang's counsel elaborated, stating, "there's a series of e-mails in

August—August 31st, September 12th .. . where he—Mr. Tang simply refuses to

do this project with respect to—or the design, I'm sorry. And he lays out in his

e-mails that—that refusal having to do with safety issues."24 Wash. Court of

Appeals, supra, at 17 mins, 30 sec. This assertion again fails. First, the place in

the record to which Tang's counsel directs us as setting forth these e-mails is, in

fact, not a series of e-mails dating from August 31st and September 12th but,

rather, a document setting forth the scope of work on the Halladay Project.25

This document does not reference any WISHA-protected safety concern, let

alone one asserted by Tang. Second, there is no indication, from the content of

this document that Enrico had actual knowledge either of this document or that

Tang had allegedly asserted any WISHA-protected safety complaint at this time.

        Finally, to the extent that Tang argues that the filing of his actual WISHA

complaint with the Department qualifies as his statutorily protected activity, he




       24 At oral argument, when asked whether, when Tang says "safety issues," he says
"methane," Tang's counsel stated, "He does. It's mentioned eight times within the scope, within
those e-mails." Wash. Court of Appeals, supra, at 18 mins, 04 sec.
        25 In another portion of the record, there is a September 12, 2012 e-mail exchange
between Tang and Cross. Therein, Cross asked Tang some questions regarding the status of
the project and he responded to these inquiries. Nowhere in this exchange did Tang assert a
WISHA-protected safety complaint.

                                             -27-
No. 73751-1-1/28



fails to make the requisite showing of a causal link between this complaint and

his demotion because he filed the complaint after he had been demoted.26

       Tang never established that, prior to his demotion, anyone responsible for

his demotion was aware of his making a WISHA-protected complaint. Indeed, he

never established that he made such a complaint at all (prior to his demotion).

Summary dismissal of his RCW 49.17.160 claim was proper.

       In addition, "in establishing the prima facie case, '[pjroximity in time

between the claim and the firing is a typical beginning point, coupled with

evidence of satisfactory work performance and supervisory evaluations." Wilmot,

118 Wn.2d at 69 (alteration in original) (quoting 1 L. Larson, Uniust Dismissal, §

6.05[5], at 6-51 (1988)). Tang's evidence does not meet this test.

        Indeed, most of Tang's asserted instances of protected actions took place

months before either the demotion recommendation or the actual demotion.

However these periods are measured, Tang's performance was uniformly not

"satisfactory." No reasonable jury could conclude that Tang was performing
adequately in his job. And any reasonable juror would simply have to take Tang




        26 In his brief, Tang references a conversation that allegedly occurred between him and
Enrico during the "summer-fall of2011" wherein he avers, once again, that he asserted a WISHA-
protected safety complaint. Br. of Appellant/Cross-Resp't at 9.
        Tang states that on this occasion he "informed Enrico that design would be a challenge
for him on the Halladay Project, particularly because it was landfill related, which inherently has
methane and other chemical and combustible issues." Br. of Appellant/Cross-Resp't at 9. To the
extent that Tang asserts that he engaged in a WISHA-protected activity on this occasion, hefails
to make the requisite showing of a causal link between this conversation and his demotion
because the declaration to which he cites indicates that, during this conversation, Tang was
referring to the design work being a challenge for Enrico to perform, not a challenge for Tang to
perform.

                                               -28-
No. 73751-1-1/29



at his word (that he lacked the competence to do his job) in order to determine

that his demotion was warranted.

       For these reasons, also, dismissal of Tang's RCW 49.17.160 claim is

affirmed.

                                         Ill


       Tang next contends that the superior court erred by dismissing his lawsuit

without ruling on what he purports to be a common law claim of wrongful

demotion in violation of public policy. We disagree.

       RAP 9.12 provides:

              On review of an order granting or denying a motion for
       summary judgment the appellate court will consideronlyevidence
       and issues called to the attention of the trial court. The order
       granting or denying the motion for summary judgment shall
       designate the documents and other evidence called to the attention
       of the trial court before the order on summary judgment was
       entered. Documents or other evidence called to the attention of the
       trial court but not designated in the order shall be made a part of
       the record by supplemental order of the trial court or by stipulation
       of counsel.


(Emphasis added.)

       Given RAP 9.12's directive that, when reviewing a trial court's summary

judgment order, "the appellate court will consider only evidence and issues called
to the attention of the trial court," we must determine whether Tang both

sufficiently pleaded and sufficiently argued a common law tort claim ofwrongful
demotion in violation of public policy in the superior court. The record

establishes that he did neither.




                                        -29
No. 73751-1-1/30



                                             A


      Tang first asserts that, in his compliant, he sufficiently pleaded a common

law tort claim of wrongful demotion in violation of public policy. The face of his

complaint indicates otherwise.27

       "[A] complaint should adequately alert the defendant of the claim's general

nature." In re Estate of Dormaier v. Columbia Basin Anesthesia. PLLC. 177 Wn.

App. 828, 853-54, 313 P.3d 431 (2013). In doing so, "a complaint must identify

the legal theory on which the plaintiff seeks relief." Dormaier. 177 Wn. App. at

854. "While inexpert pleadings may survive a summary judgment motion,

insufficient pleadings cannot." Pac. Nw. Shooting Park Ass'n v. City of Seguim,

158 Wn.2d 342, 352, 144 P.3d 276 (2006); Dormaier, 177 Wn. App. at 854. "A

complaint is insufficient if it does not give the defendant 'fair notice ofwhat the
claim is and the ground upon which it rests.'" Dormaier, 177 Wn. App. at 854
(quoting Williams v. W. Sur. Co., 6 Wn. App. 300, 305-06, 492 P.2d 596 (1972));
accord Shooting Park Ass'n, 158 Wn.2d at 352.

       Further,

             "[a] party who does not plead a cause of action or theory of
       recovery cannot finesse the issue by later inserting the theory into
       trial briefs and contending it was in the case all along." Dewevfv.
       Tacoma Sch. Dist. No. 10,] 95 Wn. App. [18,] 26, [974 P.2d 847
       (1999)]. See Shanahan v. City of Chi.. 82 F.3d 776, 781 (7th Cir.
       1996) ("A plaintiff may not amend his complaint through arguments
       in his brief in opposition to a motion for summary judgment.").

Kirbv v. Citv of Tacoma, 124 Wn. App. 454, 472, 98 P.3d 827 (2004).


       27 "We interpret and apply CR 8 pleading requirements de novo." In re Estate of
Dormaier v. Columbia Basin Anesthesia. PLLC. 177 Wn. App. 828, 853, 313 P.3d 431 (2013).

                                            -30-
No. 73751-1-1/31



       Here, the face of Tang's complaint did not notify the City that he was

asserting a common law tort claim of wrongful demotion in violation of public

policy. In the heading of his complaint, he characterized his claim as

"(Discrimination under RCW 49.17; Retaliation; Failure to follow the law)." In

paragraph 4.5, he elaborated by stating that he "seeks all relief available to him

under RCW 49.17.160 and any other law applicable for damages related to his

decisions and the retaliation that followed on the Halladay Project." Both of these

characterizations are too general to support the assertion of a common law claim

of wrongful demotion in violation of public policy. Thus, we conclude that Tang

did not sufficiently plead such a claim in the superior court.

                                                B


       The City also asserts that Tang did not argue a claim of common law

wrongful demotion in violation of public policy in the superior court. We agree.

       The record indicates that at all times—from the filing of Tang's complaint

through the oral argument on the City's motion for summary judgment—Tang

argued a single statutory claim of retaliation pursuant to RCW 49.17.160.28
Thus, he is foreclosed on appeal from arguing a different cause of action. See

Cano-Garcia v. King County. 168 Wn. App. 223, 248, 277 P.3d 34 (2012)

("Issues and contentions neither raised by the parties nor considered by the trial
court when ruling on a motion for summary judgment may not be considered for
the first time on appeal."); see also Silverhawk, LLC v. KeyBank Nat'l Ass'n. 165

        28 At oral argument, both the City and the superior court judge characterized Tang's claim
as a single statutory claim pursuant to RCW 49.17.160. Tang did not object nor did he assert
otherwise.


                                              -31 -
No. 73751-1-1/32



Wn. App. 258, 265, 268 P.3d 958 (2011) ("An argument neither pleaded nor

argued to the trial court cannot be raised for the first time on appeal.").

                                             C


       Moreover, a common law cause of action for wrongful demotion in

violation of public policy does not exist in Washington. "[T]he tort of wrongful

discharge in violation of public policy clearly applies only in a situation where an

employee has been discharged." Roberts v. Dudley. 140 Wn.2d 58, 76, 993

P.2d 901 (2000): accord White v. State. 131 Wn.2d 1, 18-20, 929 P.2d 396

(1997) (refusing to extend the common law cause of action to include disciplinary

actions less than discharge). We have recognized this limitation. Woodbury v.

City of Seattle. 172 Wn. App. 747, 753, 292 P.3d 134 (2013) ("[The employee]

does not have a common law tort claim, because there is no common law tort for

disciplinary action less severe than termination."). Thus, Tang does not establish

a basis for appellate relief.

                                             IV


       Finally, Tang requests an award of attorney fees and costs pursuant to

RCW 4.84.360.29 This request fails for two reasons. First, he is not the

prevailing party on appeal. Second, the statute to which he cites permits the


       29 RCW 4.84.360 provides:
       Fees and other expenses awarded under RCW 4.84.340 and 4.84.350 shall be
       paid by the agency over which the party prevails from operating funds
       appropriated to the agency within sixty days. Agencies paying fees and other
       expenses pursuant to RCW 4.84.340 and 4.84.350 shall report all payments to
       the officeof financial management within five days of paying the fees and other
       expenses. Fees and other expenses awarded by the court shall be subject to the
       provisions of chapter 39.76 RCW and shall be deemed payable on the date the
       court announces the award.


                                           -32-
No. 73751-1-1/33



court to award fees to a party who prevails in judicial review of claims under the

Administrative Procedure Act. See RCW 4.84.340(4).30 Tang did not bring such

an action. For each reason, we deny his request.31

       Affirmed.




We concur




                                              Vl^^Qj"




       30 RCW 4.84.340(4) provides that, "'[jjudicial review' means a judicial review as defined
by chapter34.05 RCW." Chapter 34.05 RCW sets forth the provisions of the Administrative
Procedure Act.
       31 Given our resolution of this matter, we do not address the City's cross appeal.

                                             -33-
