 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MICHELLE ZACHRY, DVM, an                    )
Individual,                                 )    No. 76459-4-1
                                            )
                      Appellant,            )    DIVISION ONE
                                            )
              v.                            )    UNPUBLISHED OPINION
                                            )
PIMA MEDICAL INSTITUTE, an                  )
Arizona for-profit educational institution; )
and MARISA DOBIASH, an individual )
residing in Washington,                     )
                                            )
                      Respondents.          )    FILED: September 4, 2018


       TRICKEY, J. — Michelle Zachry appeals the trial court's granting of summary
judgment dismissing her claim of wrongful termination in violation of public policy

against PIMA Medical Institute and Marisa Dobiash (collectively, PIMA). Because

PIMA has established an overriding justification for Zachry's termination, and

Zachry fails to demonstrate that the justification was a pretext, we affirm.

                                       FACTS

       PIMA Medical Institute is a medical career college that offers a veterinary

technician program. Marisa Dobiash is the Program Director for PIMA's veterinary

technician program. Nicole Brentin is a veterinary technician who is PIMA's head

instructor for the veterinary technician program. John Hanson is PIMA's Regional

Director of Operations. Robert Panerio is a Campus Director of PIMA. Margaret

Gerber is PIMA's Faculty Coordinator.
No. 76459-4-1/ 2

       In March 2013, PIMA hired Zachry as the Clinical Director of its veterinary

technician program. As Clinical Director, Zachry placed students into clinical

externships and postgraduation employment. Her duties also included ordering

supplies, teaching, and ensuring that PIMA complied with applicable laws and

regulations. In addition, Zachry was PIMA's Drug Enforcement Administration

(DEA)registrant. She was required to maintain a drug logbook to track and record

the shipment and use of controlled substances.

       During Zachry's employment at PIMA, there was friction between her and

Brentin. For example, in April 2015, following a disagreement about ordering

dosimeter badges,1 Zachry told Brentin in an e-mail, "Keep you [sic] tone

professional and we will get along just fine."2

       In May 2015, Zachry asked Dobiash if Dobiash could take over several of

Zachry's duties, including teaching classes, writing an annual letter, providing

feedback to externship sites, and completing employer verifications and surveys.

Around this time, Dobiash noticed that Zachry was not performing several of her

other duties satisfactorily, including ordering dosimeter badges for students and

posting quarterly dosimeter reports in classrooms.

       In August 2015, Hanson was concerned about Zachry's failure to place

students into externships and maintain P1MA's graduate employment database.

Dobiash discovered that Zachry had not completed the employer verifications,


1 Dosimeter badges monitor the wearers' exposure to radiation. OFFICE OF HOMELAND
SECURITY & EMERGENCY COORDINATION RADIATION SAFETY DIVISION, DOSIMETRY,
https://www.dm.usda.gov/ohsecirsdklosimetry.htm (last visited Aug. 6, 2018).
2 Clerk's Papers (CP) at 35. Zachry later stated that she repeatedly complained about
Brentin's behavior to Dobiash. But Zachry could not recall specific instances of doing so,
and her complaints were not documented.
                                           2
No. 76459-4-1 /3

which other PIMA employees then had to complete. In an e-mail exchange,Zachry

acknowledged that she had stopped doing employer surveys and verifications.

       Zachry's work performance continued to decline. For example, Zachry

failed to place students in externships in a timely manner and did not complete

initial site evaluations. Zachry also spent significant time in Gerber's and Panerio's

offices instead of completing her duties. On August 20, Brentin observed Zachry

divide Tramadol3 pills into new vials without properly labelling them.4 When the

pills had to be consolidated later, Zachry was unable to provide the pills' expiration

date or lot number.

       In September 2015, Zachry complained to a PIMA administrator that

Dobiash had refused to teach PIMA's students a federally mandated education

program about the United States Constitution. PIMA had previously sent an e-mail

to its staff stating that PIMA was required to observe Constitution Day on

September 17, 2015, and provided several examples of activities that satisfied the

education program requirement. PIMA had denied Zachry's request to teach the

education program about the Constitution.

       On September 14, 2015, Zachry entered Brentin's classroom to collect

several bags of hazardous waste. She found that the bags were wet.5 Zachry was




3 Tramadol is a medication given for pain.
4 Zachry divided the remainder of a 1,000-count bottle of Tramadol pills into containers of
42 pills, which she labeled with "Tramadol 50 mg'" written on bandage tape. CP at 115-
16.
5 Brentin declared that she had bagged the hazardous waste in accordance with PIMA's
protocols and that bags of hazardous waste may occasionally leak despite careful
packaging.
                                            3
No. 76459-4-1 /4

visibly angry, and refused to pick up the bags for disposa1.6 Later that day, Zachry

e-mailed Brentin and Dobiash proposing new procedures for packaging hazardous

waste for disposal.

       On September 16, Zachry sent several e-mails to Brentin and Dobiash

regarding the hazardous waste disposal incident. In a separate e-mail to Dobiash

and Panerio, Zachry disparaged Brentin's job performance stating, "Tell [Brentin]

to suck it up buttercup, and do her job properly. No, I am done jumping through

her hoops. All of them. She will now abide by my rules or she won't get her stuff

done. End of story."7 She also e-mailed Dobiash, Brentin, and Panerio, telling

them to place supply orders two weeks in advance to reduce Zachry's workload.8

Finally, Zachry sent an e-mail to Brentin about whether a formalin solution would

eat through various plastics, concluding with "[o]ne of my biggest peeves is when

people speak about things they don't know as if they do."6 When Dobiash told

Zachry that Zachry and Brentin needed to discuss these issues in person, Zachry

replied, "You and I have already talked it out enough, and things are not getting

better. Just newer and different idiocies."10

       On September 17, 2015, Zachry met with Dobiash and Gerber to talk about

Zachry's job performance and her apparent hostility towards Brentin. Dobiash




6 Brentin declared that Zachry "was stomping around, slamming the bins, grumbling, and
complaining about how the waste was packaged" while Brentin was teaching. CP at 115.
7 CP at 11-12.
8 Specifically, Zachry stated that advance notice of supply orders would reduce her "hoop
jumping." CP at 52. Zachry also stated that "your emergency is not mine," assumedly in
reference to any problems that could arise from her proposed ordering schedule. CP at
52.
9 CP at 130.
10 CP at 54.

                                           4
No. 76459-4-1/ 5

agreed to take over ordering supplies and completing the hazardous waste

disposal so Zachry would have more time to perform her other duties.

       Zachry also brought up several issues she had with Brentin, and the parties

agreed on solutions for each issue. Zachry said she was feeling overwhelmed and

could not complete her work unless Brentin changed her behavior. But Zachry

refused to meet with Brentin. Later that day, Dobiash and Gerber met with Brentin

to relay Zachry's concerns.     Brentin said that she would follow the agreed

solutions.

       On September 20, Dobiash made a note to herself about placing Zachry on

a Performance Improvement Plan (PIP) based on Zachry's difficulties with

completing her duties. Dobiash listed the areas of targeted improvement as

externship placement, site visits and evaluations, and communication.

       On September 24, Dobiash and Gerber met with Zachry. At the end of the

meeting, Zachry mentioned that she had personal issues with depression and

controlling her anger, and said that she would see a doctor about the medications

she was taking. Zachry apologized for previously saying that Dobiash was not

supportive and was not doing her job.

       On October 9, 2015, Zachry went to Panerio's office and said that she was

having mental health issues. She then proceeded to say that she was taking

medication and going through menopause, that her brother was dying, and that

"selling and buying houses has made[her]a flake and crazy."11 She also criticized




11 CP at 79.
                                        5
No. 76459-4-1 /6

Dobiash, Brentin, and other instructors. Panerio observed that Zachry looked

"mentally ill, dirty, and visibly angry."12

       On October 12, Zachry e-mailed Dobiash saying, "Also, I advise you to not

make too many hasty changes to things until after the [upcoming October 16]

meeting with [Panerio]. All I did was give [Brentin]the rope."13 Dobiash and others

did not understand what Zachry meant by "rope."14

       On October 16, Dobiash, Panerio, and Gerber met with Zachry to inform

her that she was being placed on a PIP. During the meeting,the parties discussed

Zachry's behavioral problems and substandard job performance. Zachry stated

that she felt overwhelmed by her job, and asked to be relieved of her attending

veterinarian duties so she did not have to work with Brentin.15

       Zachry also said that she had observed several illegal activities at PIMA,

including violations of the Occupational Safety and Health Act of 1970(OSHA).16

Gerber stated that she had not received any complaints about OSHA violations.

Dobiash thanked Zachry for bringing it up and said it was Dobiash's responsibility

to look into the matter.

       Zachry then said that she had retained a lawyer and that "you'll have to fire

me."17 She pulled a cell phone out of her shirt and said that she was recording the




12 CP at 79.
13 CP at 75.
14 CP at 75.
15 Zachry later asked to continue with her attending veterinarian duties.
16 29 U.S.C. §§ 651-678.
17 CP at 81. Zachry later denied that she had said that PIMA would have to fire her, and
claimed that she had told Panerio that she would not resign.
                                              6
 No. 76459-4-1 /7


 meeting.18 Zachry acknowledged that recording the meeting without the others'

 permission was unethical.18 After Panerio noted that the recording would not be

 admissible in court, Zachry said, "'This is hilarious, so funny.'”zo            Panerio

 responded that it was "actually terribly sad.'"21 Panerio, Gerber, and Dobiash

 adjourned the meeting. After the meeting, Dobiash and Gerber began drafting the
 pip.22



          On October 19, 2015,Zachry e-mailed Hanson and two other PIMA officials

 about alleged illegal and unprofessional activities at PIMA. Her concerns included

 Brentin refusing to administer medications Zachry ordered, Brentin illegally

 prescribing medication without authorization, OSHA violations, and students not

 matriculating into PIMA's veterinary technician program out of fear of Brentin.23

Zachry included her own notes from various meetings and classes, which included

that she discussed possible OSHA violations with Panerio at their meeting on

 October 9.24



18 Dobiash, Panerio, and Gerber asked Zachry if she was recording the meeting, and
Zachry responded,"yes." CP at 81.
"When Gerber said, "that's illegal,' Zachry responded,"no, but unethical." CP at 81.
20 CP at 81.
21 CP at 81.
22 Zachry also mentioned to Dobiash after the meeting that "5 mls" of Buprenex was
missing but that she did not "believe [Brentin] or anyone else ha[d] done anything wrong."
CP at 81. Later, Dobiash noted, and Zachry agreed, that Zachry had not followed up on
this discrepancy and that it was likely due to errors in Zachry's drug logbook
documentation.
23 Zachry later admitted that Brentin had never administered such a medication because
Zachry was the one responsible for its administration. Further, Zachry admitted that she
had access to the records of prescribed drugs but did not check whether any had been
wrongfully prescribed, and the records themselves account for the drugs Zachry claimed
were illegally prescribed.
24 Panerio's notes about the October 9 meeting did not reflect that Zachry had discussed
possible OSHA violations. At her deposition, Zachry recalled discussing her personal
issues but did not state that she had discussed OSHA violations with Panerio.
                                            7
No. 76459-4-1/ 8

       On October 23, 2015, Dobiash e-mailed Zachry the PIP. The performance

improvement opportunities listed in the PIP were timely placement of students in

externships; improvement of quantity and timeliness of clinical site evaluation

visits; timely verification of job placement for recent graduates; completion of

administrative duties, such as entering students' externship timesheets and

ordering supplies; performance of her surgical duties as an attending veterinarian;

improvement in her job attendance rate; improvement of her professional respect

toward other PIMA employees; and following the protocol for reporting grievances.

The PIP required Zachry to meet with Dobiash each Friday until November 20,

2015 to discuss Zachry's progress and compliance with the PIP. The PIP notified

Zachry that "[gess than adequate improvement may result in dismissal."25

       On November 2, 2015, Zachry e-mailed Brentin, Dobiash, and Panerio

about discrepancies in the controlled drug logbook and stated that she could not

track the drugs because they were not catalogued properly. Zachry requested that

Brentin provide her with written copies of all Clavamox26 and Tramadol that Zachry

had previously ordered.27

       On November 10, 2015, Hanson e-mailed Zachry to inform her that PIMA

would investigate her concerns about alleged illegal activity. Hanson reiterated

that Zachry was on a PIP, and that she had to attend the weekly meetings. In



25 CP at 91.
26 Clavamox is an antibiotic medication.
27 In a later deposition, Zachry stated that when she asked Brentin for data about PIMA's
Clavamox supply, Brentin told her that it had expired and was thrown away. Brentin
declared that she and Dobiash inventoried the Clavamox and noticed a bottle with a July
2015 expiration date, which they removed from the cabinet and which has been kept in
Brentin's office.
                                           8
No. 76459-4-1/ 9

response, Zachry disputed the validity of the PIP. She also said that she had "no

intention offollowing through with the items on the PIP that are either unreasonable

or newly assigned duties."28

         Zachry was unable or unwilling to comply with the PIP's requirements. On

November 11, Zachry met with Dobiash and Panerio to discuss the PIP, and all

three agreed that she had not complied with the PIP's requirements. Later that

day, PIMA informed Zachry that her employment was being terminated

immediately because she had admitted to not complying with the PIP and had

stated that she had no intention of doing so in the future.

         On November 30, 2015, Zachry sued PIMA, claiming that PIMA had

wrongfully terminated her in violation of public policy. In her complaint, Zachry

argued that she had been wrongfully terminated in retaliation for reporting drug

management violations by Brentin.

         On December 23, 2016, PIMA filed an amended motion for summary

judgment. PIMA argued that Zachry had not established the necessary elements

of her claim, and characterized her claim as whistleblowing.29 Further, PIMA



28   CP at 278.
29 PIMA's amended     motion for summary judgment was the first instance of Zachry's claim
being characterized as whistleblowing. This is inaccurate.
        Although Zachry filed several complaints with regulatory bodies on or before
October 20, 2015, after the October 16 PIP meeting, her claim for wrongful termination in
violation of public policy was not based on these complaints. Further, on appeal Zachry
rejects PIMA's characterization of her claim as whistleblowing. She argues that a report
to upper management of wrongdoing is sufficient to support a claim of wrongful termination
in violation of public policy, relying on Rickman v. Premera Blue Cross, 184 Wn.2d 300,
305-06, 311-12, 358 P.3d 1153 (2015)(applying analysis of Gardner v. Loomis Armored,
Inc., 128 Wn.2d 931, 940, 913 P.2d 377 (1996), to employee's complaint that she had been
wrongfully terminated in violation of public policy after raising concerns to her supervisor
that employer's practices could violate HIPAA laws (Health Insurance Portability and
Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936)).
                                            9
No. 76459-4-1/ 10

contended that, even if Zachry established the elements necessary for her claim,

undisputed evidence in the record demonstrated that Zachry's poor job

performance and failure to comply with the PIP provided an overriding justification

for PIMA's termination of her employment.

       On January 3, 2017, Zachry filed a response to PIMA's amended motion for

summary judgment. Zachry argued that genuine issues of material fact precluded

summary judgment. She argued that firing employees in retaliation for reporting

employer misconduct violated public policy, and that the record established a

factual dispute about actual misconduct by PIMA "regarding (i) the management

of prescription drugs, (ii) the disposal of hazardous waste, and (iii) the failure to

teach federally-required coursework."3° She also argued that there was a dispute

of material fact regarding the other elements of her claim, including briefly arguing

that there was a question of fact concerning whether the PIP was a pretext for

retaliating against Zachry.

       On January 9, 2017, PIMA filed a reply in support of its amended motion for

summary judgment. PIMA argued that Zachry had failed to establish a clear public

policy because whistleblowing is insufficient to establish a clear public policy, and



       Thus, because Zachry's initial complaint was not premised on whistleblowing and
she has explicitly rejected this characterization on appeal, we decline to reach PIMA's
arguments regarding whistleblowing on appeal.
3° CP at 354-56. Zachry's complaint did not refer to hazardous waste disposal or failure
to teach federally-required coursework. The record does not indicate that Zachry filed an
amended complaint or otherwise raised these arguments prior to her response to PIMA's
motion for summary judgment. The parties have not clarified this discrepancy, and have
addressed the merits of each new claim in their briefing and argument before the trial
court. See, e.o., CP at 519-20 (PIMA reply in support of amended motion for summary
judgment), Report of Proceedings(RP)(Jan. 13, 2017)at 21 (argument during hearing on
PIMA's summary judgment motion). We will consider these three public policy grounds
as having been raised below.
                                           10
No. 76459-4-1 / 11

Zachry had not shown that PIMA engaged in actual misconduct in its hazardous

waste disposal, failing to teach federally-required coursework, or managing

controlled substances. PIMA also argued that Zachry had not produced evidence

that her conduct in reporting the violations was the only way to promote the public

policy or that her complaints were a substantial factor in PIMA's decision to

terminate her employment. Finally, PIMA contended that it had carried its burden

of showing that Zachry's job performance deficiencies were an overriding

justification for her being placed on a PIP and for her later termination, and that

Zachry had not disputed the evidence supporting that overriding justification.

       On January 13, the trial court held a hearing on PIMA's motion for summary

judgment.31     PIMA's arguments primarily focused on whether Zachry had

established a clear public policy and whether PIMA had offered an undisputed

overriding justification for Zachry's termination. Zachry responded by reiterating

that she had reported violations of several substantive laws, including laws

governing the dispensing of controlled substances, governing hazardous waste

management, and requiring facilities receiving federal funding to teach classes on

constitutional principles. Zachry contended that there were triable issues of fact

on all of the elements of her claim, and that the PIP was retaliatory.

       On January 20, 2017, the trial court issued an order granting summary

judgment in favor of PIMA and dismissing Zachry's claims with prejudice. On

March 15, 2017, the trial court supplemented its order on summary judgment to


31 We note that the trial court did not have all of the relevant documents before it at the
summary judgment hearing, including declarations submitted by the parties. The trial
court proceeded with the hearing following a request by Zachry's attorney, and stated that
it would return to the pleadings after reviewing the declarations.
                                            11
No. 76459-4-1 /12

provide a list of the documents in the record that it had considered in making its

decision.

       Zachry appeals.

                                     ANALYSIS

                 Wrongful Termination in Violation of Public Policy

       Zachry argues that the trial court erred in granting summary judgment in

favor of PIMA because she established a prima facie case of wrongful termination

in violation of public policy and because genuine issues of material fact existed on

each element of her claim. Because PIMA established an overriding justification

for Zachry's termination, and Zachry fails to demonstrate that the justification was

a pretext, we conclude that the trial court did not err.

       Generally, Washington employment contracts that do not set a definite

duration are "terminable at will by either the employee or employer." Thompson v.

St. Regis Paper Co., 102 Wn.2d 219, 223, 685 P.2d 1081 (1984). But "an

employer can be liable in tort if he or she discharges an employee for a reason

that contravenes a clear mandate of public policy." Thompson, 102 Wn.2d at 233.

This public policy exception is "narrowly drawn so that it does not swallow the

general rule of at-will employment." Roe v. TeleTech Customer Care Mgmt.

(Colorado) LLC, 171 Wn.2d 736, 756, 257 P.3d 586(2011).

       In determining whether an employee has made a prima facie case of

wrongful termination in violation of public policy, courts consider whether the

employee has proved the existence of a clear public policy (the clarity element),

that discouraging the conduct he or she engaged in would jeopardize the public


                                          12
No. 76459-4-1 /13

policy (the jeopardy element), and that he or she was dismissed because of the

conduct he or she engaged in that was related to the public policy (the causation

element).32 Becker v. Cmty. Health Sys., 184 Wn.2d 252, 259 n.3, 359 P.3d 746

(2015) (citing Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 941, 913 P.2d

377 (1996)). To establish causation, the employee must "produce evidence that

the actions in furtherance of public policy were 'a cause of the firing, and [the

employee] may do so by circumstantial evidence." Rickman v. Premera Blue

Cross, 184 Wn.2d 300, 314, 358 P.3d 1153(2015)(alteration in original)(quoting

Wilmot v. Kaiser Alum. & Chem. Corp., 118 Wn.2d 46, 70, 821 P.2d 18 (1991)).

"This [causation] test asks whether the employee's conduct in furthering a public

policy was a "substantial" factor motivating the employer to discharge the

employee." Rickman, 184 Wn 2d at 314 (quoting Wilmot, 118 Wn.2d at 71).

        If the employee establishes a prima facie case of wrongful termination in

violation of public policy, the burden shifts to the employer to establish a legitimate,

nonpretextual, nonretaliatory overriding justification for the dismissal (the absence

of justification element). Gardner, 128 Wn.2d at 941; Wilmot, 118 Wn.2d at 70.

Thus, the employer must "offer an overriding justification for the [discharge]' . ..

'despite the employee's public-policy-linked conduct." Rickman, 184 Wn.2d at 314

(alteration in original)(quoting Gardner, 128 Wn.2d at 941, 947).



32Several situations have been recognized as giving rise to a claim of wrongful termination
in violation of public policy, including an employee's refusal to commit an illegal act or
whistleblowing. Rose v. Anderson Hay & Grain Co., 184 Wn.2d 268, 276, 358 P.3d 1139
(2015). As discussed above, Zachry's claim is not premised on alleged whistleblowing
practices, and thus the present case does not fall within the specified scenarios
enunciated in Rose. We instead apply the analysis enunciated in Gardner, 128 Wn.2d at
941.
                                            13
No. 76459-4-1 / 14

       "If the employer produces evidence of a legitimate basis for the discharge,

the burden shifts back"to the employee to establish that the employer's justification

was pretextual or that retaliation for the employee's protected conduct was a

substantial factor motivating the employer even if the employer's justification was

valid. Wilmot, 118 Wn.2d at 70, 73.

      "Summary judgment is appropriate when 'there is no genuine issue as to

any material fact and ... the moving party is entitled to a judgment as a matter of

law." Locke v. City of Seattle, 162 Wn.2d 474,483, 172 P.3d 705(2007)(quoting

CR 56(c)). "A genuine issue of material fact exists where reasonable minds could

differ on the facts controlling the outcome of the litigation." Ranger Ins. Co. v.

Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). "When determining

whether an issue of material fact exists, the court must construe all facts and

inferences in favor of the nonmoving party." Ranger Ins. Co., 164 Wn.2d at 552.

      "The burden of showing that there is no issue of material fact falls upon the

party moving for summary judgment." Hash by Hash v. Children's Orthopedic

Hosp. & Med. Ctr., 110 Wn.2d 912, 915, 757 P.2d 507(1988). Once the moving

party carries its burden, "the burden shift[s] to the nonmoving party to set forth

facts showing that there is a genuine issue of material fact." Hash by Hash, 110

Wn.2d at 915. "Broad generalizations and vague conclusions are insufficient to

resist a motion for summary judgment." Thompson v. Everett Clinic, 71 Wn. App.

548, 555, 860 P.2d 1054(1993).

       A trial court's grant of summary judgment is reviewed de novo. Ranger Ins.

Co., 164 Wn.2d at 552.


                                         14
No. 76459-4-1 /15

       Here, Zachry's arguments on appeal almost exclusively focus on whether

hazardous waste laws, laws regulating drug management, and institutions that

receive federal funding teaching about the United States Constitution on

Constitution Day are clearly established public policies.33 She has not offered

substantial argument on the causation or justification elements of her prima facie

claim of wrongful termination in violation of public policy. But even assuming that

Zachry was able to establish that a genuine issue of material fact exists on the

clarity, causation, or jeopardy elements of her claim, she has not shown that a

genuine issue of material fact exists regarding PIMA's overriding justification for

terminating her employment.

       Zachry exhibited issues with herjob performance and interactions with other

PIMA employees as early as April 2015. Her job performance problems continued

through August and September 2015, and her interactions with others became

increasingly hostile.

       These issues prompted PIMA to place Zachry on a PIP in October 2015.

The PIP focused on improving her performance of core job duties, such as timely

placement of students into externships and improving the quality and timeliness of

clinical site evaluation visits, and her relations with other employees. The PIP

notified Zachry that she could be terminated if she did not show adequate

improvement. On November 11, 2015, Zachry agreed that she had not complied



33Zachry also argues for the first time on appeal that she was wrongfully terminated in
violation of public policies based on her complaints about OSHA violations at PIMA. A
reviewing court may decline to review any issue that a party did not raise before the trial
court on summary judgment. RAP 9.12. We decline to reach Zachry's arguments
concerning her alleged complaints of OSHA violations.
                                            15
No. 76459-4-1 /16

with any of the PIP's required areas of improvement, and PIMA terminated her on

the same day.

       The PIP's required areas of improvement were related to critical aspects of

Zachry's job and her ability to work effectively with other PIMA employees. Zachry

was aware that her failure to improve in these areas could lead to the termination

of her employment. But she admittedly failed to comply with the PIP. Thus,

Zachry's failure to comply constitutes an overriding justification for her termination.

       On appeal, Zachry has not argued that she complied with the PIP or that a

genuine issue of material fact precluding summary judgment existed on the

element of PIMA's overriding justification for her termination. Therefore, we

conclude that PIMA carried its burden of establishing that no genuine issue of

material fact existed on whether it had established an overriding justification for

Zachry's termination.

       Zachry contends that she has met her burden to show that the PIP was

pretextual or retaliatory, and thus cannot serve as a valid overriding justification for

her termination. Specifically, she describes the PIP as "onerous" and "one with

which she could not possibly comply," and claims that it added new duties.34

Zachry did not raise this argument on summary judgment below and it is therefore

untimely.35 We decline to reach Zachry's challenge to the validity of the PIP or its

contents. RAP 9.12.




34Appellant's Br. at 37.
35See CP at 1-4 (Zachry's complaint did not mention the PIP as a retaliatory action); CP
at 358-59 (Zachry's response to PIMA's motion for summary judgment, arguing that the
timing of the PIP indicated it was retaliatory).
                                          16
No. 76459-4-1 /17

         We also note that, even taking Zachry's argument as true, she only

challenged some areas of improvement listed in the PIP in an e-mail to Hanson.

In the same e-mail, Zachry wrote that "the rest of the PIP besides these specific

details will be adhered to strictly without difficulty."36

         Later, Zachry acknowledged that she did not comply with any of the PIP's

areas of improvement, including those which she agreed were valid. Thus,

because she admitted that she failed to improve her job performance in

accordance with unchallenged aspects of the PIP, her argument does not create

a genuine issue of material fact over whether PIMA offered an overriding

justification for her termination.

         Zachry also argues that the timing of PIMA's placing her on a PIP indicated

that the PIP was retaliatory.

         "[I]n establishing [a prima facie case of wrongful termination], '[p]roximity 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 (third alteration in original)(quoting 1 L. Larson, Uniust Dismissal

§ 6.05[5], at 6-51).

         As discussed above, Zachry acknowledged that she did not comply with

any of the PIP's areas of improvement, including those she did not challenge as

invalid. Thus, although Zachry's termination was arguably close in time to her

complaints, it was not accompanied by satisfactory job performance. Therefore,




36   CP at 278.
                                            17
No. 76459-4-1 / 18

we conclude that temporal proximity is insufficient to demonstrate that the PIP was

retaliatory.

       In sum, Zachry has not demonstrated that a genuine issue of material fact

precluding summary judgment existed regarding PIMA's legitimate, nonpretextual,

nonretaliatory overriding justification for her termination. Therefore, we conclude

that the trial court did not err in granting summary judgment in favor of PIMA and

dismissing Zachry's case with prejudice.

       Affirmed.




                                                    le        e
WE CONCUR:




                                                    T-5e,ke_e




                                       18
