                                                                2015 FEB 17 AH 9: lo


         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MERGITU ARGO,
                                                        DIVISION ONE
                       Appellant,
                                                        No. 71306-0-1

                                                        UNPUBLISHED OPINION
PORT JOBS, a Washington
corporation,
                                                        FILED: February 17, 2015
                       Respondent.


         Dwyer, J. - Mergitu Argo filed suit against Port Jobs, claiming that Port

Jobs had violated Washington's Law Against Discrimination (WLAD), chapter

49.60 RCW, in its dealings with her. The superior court dismissed her lawsuit on

summary judgment. We affirm.

                                               I


         Port Jobs is a Washington corporation,1 established to assist typically-

underrepresented workers in gaining the skills necessary to obtain jobs in the

Port of Seattle economy, including Seattle-Tacoma International Airport. To

further its efforts, Port Jobs contracted with Neighborhood House, a nonprofit

corporation.2 According to Heather Worthley, Port Jobs' executive director, Port

Jobs and Neighborhood House entered into a series of one-year, annual

professional services agreements, commencing "in or about 2005." At issue

       1The first amended complaint filed herein alleges this corporate status. Defendant's
answer is not in our record, which discloses nothing further as to Port Jobs' legal status.
        2The Professional Services Agreement includes a statement that Neighborhood House is
a "non-profit corporation." The Agreement nowhere indicates Port Jobs' business organization
model.
No. 71306-0-1/2



herein is a Professional Services Agreement (the Agreement), effective January

1, 2011 through December 31, 2011, in which Neighborhood House is

referenced as the "Contractor." Section X of the Agreement provides:

            The relationship of Contractor to Port Jobs shall be that of an
      independent contractor; and the Contractor and its officers,
      employees, subcontractors and agents shall not be considered
      employees, agents, or legal representatives of Port Jobs for any
      purpose whatsoever. Port Jobs is not granted any express or
      implied right or authority to create or assume any obligation or
      responsibility on behalf of, or in the name of Contractor, or to bind
      Contractor in any manner or thing whatsoever.

Thus, according to the express terms of the agreement, Neighborhood House

was an independent contractor of Port Jobs. Argo was not a party to that

contract and was not mentioned therein.

       Pursuant to the agreement, Port Jobs agreed to pay Neighborhood House

for the scope of work set forth in "Attachment A." "Attachment A" provides, in

pertinent part: "Employ, train and support 1 FTE employment case manager

through contractand leveraged resources. This case manager will be housed at
Airport Jobs." Thus, again according to the express terms of the Agreement,

Argo—who ultimately filled the employment case manager position—was an
employee of Neighborhood House. Pursuant to the Agreement, Neighborhood
House out-stationed Argo part of the time at Airport Jobs. During the same time
period, Argo was sometimes stationed at other Neighborhood House locations.
       In January 2006, Neighborhood House sought applicants for the
"Neighborhood House Employment Specialist" position. The position was in the
employment and adult education department and reported to that department's
manager. The position description included the number of hours per week and

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No. 71306-0-1/3



hours of work as well as the hourly wage and other benefits. According to the

description, the "position will be located at the Airport Jobs office in SeaTac

Airport." Though the description is consistent with the scope of work

Neighborhood House agreed to provide pursuant to the Agreement, the posting

is by Neighborhood House, not Port Jobs, for a position with Neighborhood

House, not Port Jobs.

       On March 17, 2006, Argo submitted an application to Neighborhood

House for the employment specialist position. Argo was the successful

applicant. On March 29, 2006, Neighborhood House sent her a letter, which

formally extended an offer of employment and confirmed the terms of that

employment, including work hours, salary, and benefits. In particular, the letter

stated that Argo's specific hours would be determined by her Neighborhood

House supervisor. Neighborhood House also completed a "Neighborhood

House — New Hire (Employee)" form documenting the hiring decision.

       Argo began working part time for Neighborhood House on March 28, 2006
and began working full time, "as a regular employee of Neighborhood House," on
April 10, 2006. On her first day, Argo completed Neighborhood House's "New

Employee Information Data Sheet." Argo was also provided a copy of
Neighborhood House's employment manual, which provided, in part:

       Your employment at Neighborhood House is "at will" which means
       either you or Neighborhood House may terminate the relationship
       at any time, without notice and for any reason. No agency
       representative other than the Executive Director has the authority to
       make an agreement contrary to the preceding at will statement and
       any such agreement must be in writing.




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       Neighborhood House compensated Argo for her employment. Argo

admits that, from 2006 to 2012, she "received wages, salary or other

compensatory employment payments and benefits from Neighborhood House."

She also admits that, by contrast, she "did not receive any health, pension or

other employment benefits from Port Jobs." Moreover, apart from "Starbucks gift

cards," Argo does not identify "any wage or salary payments or other

compensatory payments from Port Jobs." Argo further admits that "at no time did

Port Jobs provide [her] with an IRS Form W-4 form to complete," and "at no time

did Port Jobs withhold any amounts for income or employment taxes." Argo also

admits that she "did not receive an IRS Form W-2 from Port Jobs."

       Port Jobs funded the annual professional services agreements with

Neighborhood House using grant money. Section IV of the Agreement provided,

in pertinent part:

               Port Jobs may terminate this agreement without recourse by
       Contractor, in the event that Port Jobs or outside funding agencies
       discontinue funding. In the event of such termination, Contractor
       shall receive payment for those services provided up to the date of
       the notice of termination, if hand delivered, or three days after, if
       notice is mailed.

       Eventually, and unfortunately for all involved, the grant money supporting

the Agreement between Neighborhood House and Port Jobs was discontinued.
Replacement funding was not secured. As a result, Port Jobs ended its long
standing contractual relationship with Neighborhood House. Argo stopped
providing services on behalf of Neighborhood House at Port Jobs at the end of
February 2012. However, Argo continued to work for Neighborhood House for

another month.



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No. 71306-0-1/5



       At the end of March 2012, Neighborhood House terminated Argo's

employment. Argo's Neighborhood House supervisor filled out a form entitled

"Neighborhood House - Separation (Employee and Others)" identifying Argo as

an "Employee" and indicating "Lay Off' as the "Separation Reason."

Neighborhood House's "Personnel Action Log" further indicates that Argo was

laid off from the organization effective March 30, 2012.3

                                                II


       On December 31, 2012, Argo filed her first amended complaint naming

Port Jobs as defendant and asserting a single cause of action for alleged racial

discrimination and wrongful termination under the WLAD. Argo did not allege

third-party beneficiary status in the complaint.

       On April 22, 2013, Port Jobs filed a motion for summary judgment,

seeking dismissal of Argo's WLAD claim. The motion was premised upon the

assertion that Port Jobs was not Argo's employer and, accordingly, there was no

employment relationship supporting Argo's WLAD claim against Port Jobs. In

her responsive briefing, Argo argued that she was an employee of Port Jobs and

specifically denied independent contractor status. On July 12, 2013, the trial
court granted, in part, Port Jobs' motion for summary judgment, ruling that, as a

matter of law, Argo was not an employee of Port Jobs.4
        Port Jobs subsequently filed a second motion for summary judgment,

seeking dismissal of Argo's claim on the ground that Argo was not an

independent contractor of Port Jobs and, thus, lacked standing to pursue a claim
        3Argo was re-employed by Neighborhood House as an "Employment Case Manager II"
on February 22, 2013.
       4 Argo does not assign error to that order.
No. 71306-0-1/6



against Port Jobs pursuant to the WLAD. In her responsive pleadings, in

contradiction to her prior position, Argo argued that she was, in fact, an

independent contractor with regard to Port Jobs. On October 29, 2013, the trial

court granted Port Jobs' dismissal motion, ruling that Argo was not an

independent contractor.

       On November 8, 2013, Argo filed a motion for reconsideration of this

order. Therein, Argo admitted that she was an employee of Neighborhood

House and not of Port Jobs. Instead, Argo argued—for the first time—that she

was a third-party beneficiary of the contract entered into between Neighborhood

House and Port Jobs. The trial court denied Argo's reconsideration motion on

two separate bases: first, because the third-party beneficiary theory was not

previously pled or presented to the court and Argo failed to offer any explanation

for her failure to do so; and second, because Argo was not, in actuality, a third-

party beneficiary of the contract.

                                                Ill


       Argo first contends that summary judgment as to whether Argo was an

independent contractorwas improperly granted. This is so, she asserts, because

sufficient evidence was presented to create a material issue of fact. We

disagree.5



       5Argo's counsel appeared to concede this issue at oral argument. He stated:
       The proper analysis for this particular claim ... would be to look at the contract
       between Neighborhood House and Port Jobs and then ask the question ...
       whether or not she is a "third party beneficiary" to that particular contract   It is
       unprecedented in Washington to have this issue, and that is why procedurally we
       had kind of a mess coming up here as far as getting to the right issue, but that's
       the issue.



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No. 71306-0-1/7



       Summary judgment orders are reviewed de novo; we engage in the same

inquiry as the trial court. Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 65, 837

P.2d 618 (1992); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030

(1982). The relevant questions are whether there is a genuine issue as to any

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

law. Fahn v. Cowlitz County, 93 Wn.2d 368, 373, 610 P.2d 857, 621 P.2d 1293

(1980). In reaching these determinations, we consider the evidence and the

reasonable inferences therefrom in the light most favorable to the nonmoving

party. Schaafv.Hiqhfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995). Summary

judgment is improper if there is a dispute as to any material fact. Hiatt, 120

Wn.2d at 65. However, where reasonable minds could reach but one conclusion

from the admissible facts in evidence, summary judgment should be granted.

CR 56(c); LaMon v. Butler. 112 Wn.2d 193, 199, 770 P.2d 1027 (1989).

       In order for a plaintiff alleging discrimination in the workplace to overcome

a motion for summary judgment, the worker must do more than express an

opinion or make conclusory statements. Grimwood v. Univ. of Puaet Sound, Inc.,
110 Wn.2d 355, 359-60, 753 P.2d 517 (1988). The worker must establish

specific and material facts to support each element of his or her prima facie case.

Hiatt, 120Wn.2dat66-67.

       An independent contractor is one who contracts with another to render
services in the course of an independent occupation; such person represents the

will of her employer only as to the result of the work, and not the manner and
Wash. Courtof Appeals oral argument (Jan. 12, 2015) (on file with court). We
nevertheless fully address the issue both because it was fully briefed and because it was
not formally conceded.


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No. 71306-0-1/8



means by which it is accomplished. Afoa v. Port of Seattle, 176 Wn.2d 460, 476,

296 P.3d 800 (2013); Cassidv v. Peters, 50 Wn.2d 115,119, 309 P.2d 767

(1957). Similarly, an independent contractor is one who contracts to perform a

certain service for another, according to her own manner or method, free from

control and direction of her employer in all matters connected with the

performance of the service, except as to the result of the work. Leech v. Sultan

Rv.& Timber Co., 161 Wash. 426, 428, 297 P. 203 (1931). Thus, an

independent contractor is one who is independent of her employer in doing the

work and may work when and how she prefers. Leech, 161 Wash, at 432.

There are two indispensable elements to the character of an independent

contractor: the person must (1) contract to do a specified scope of work and (2)

have the right to control the manner and method of doing it. Leech, 161 Wash, at

431. Factual disputes as to both elements are missing from Argo's claim.

       First, there is no contract between Argo and Port Jobs. The only contract

at issue here—the Agreement—is between Port Jobs and Neighborhood House.

Argo is not a party to the Agreement. Moreover, the terms of the Agreement are

clear that Neighborhood House, not Argo, is an independent contractorwith

regard to Port Jobs. Section Xofthe Agreement states in pertinent part: "The
relationship of [Neighborhood House] to Port Jobs shall be that of an
independent contractor." The Agreement does not specifically mention Argo but
states generally: "[E]mployees [of Neighborhood House] shall not be considered
employees, agents, or legal representatives of Port Jobs for any purpose

whatsoever."




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No. 71306-0-1/9



      Argo attempts to distort the language quoted from the Agreement. She

argues that she was an independent contractor for Port Jobs because her

employer, Neighborhood House, was an independent contractor for Port Jobs

and she stands in the shoes of her employer. Argo cites no authority in support

of this argument. We are not persuaded. "[T]he court cannot rule out of the

contract language which the parties thereto have put into it, nor can the court

revise the contract under the theory of construing it, nor can the court create a

contract for the parties which they did not make themselves, nor can the court

impose obligations which never before existed." Farmers Ins. Co. of Wash, v.

Miller, 87 Wn.2d 70, 73, 549 P.2d 9 (1976).

       Second, Argo did not control the manner and method of her work. Argo's

own testimony defeats her claim that she was an independent contractor for Port

Jobs. For example, in her declaration, Argo stated: "[Port Jobs] supervisors had

the final say over the type of work I was doing, the projects I performed, the

manner in which I undertook to complete the projects, and all other aspects of my

work as an employment specialist." In addition, in her merits briefing to this

court, Argo makes the following assertions: Argo's "Port Jobs supervisor[s]" "had

the final say in [her] schedule and her work, tasks and projects," Appellant's Br.

at 4-5; and "[Port Jobs] controlled the manner and means of her work for six

years." Appellant's Br. at 16-17 (internal quotation marks omitted).
No. 71306-0-1/10



        Argo's claim that she was an independent contractor fails as a matter of

law.6

                                               IV


        Argo next contends that the trial court erred in denying her motion for

reconsideration, wherein she argued—for the first time—that she was a third-

party beneficiary of the Agreement. Argo further argues that the WLAD protects

third-party beneficiaries from discrimination. The trial court denied Argo's motion

on two separate bases. We affirm the trial court's rulings on each ground.

                                               A

        The first basis for the trial court's denial of the reconsideration motion was

that the motion was based on a legal theory that had not been raised in a timely

manner.


        We review the trial court's decision for an abuse of discretion. State v.

Scott, 92 Wn.2d 209, 212, 595 P.2d 549 (1979). A trial court abuses its

discretion when its decision is based on untenable grounds or reasons. Wilcox v.

Lexington Eve Inst.. 130 Wn. App. 234, 241, 122 P.3d 729 (2005). No such

abuse is shown to exist herein.

        Under Civil Rule (CR) 59(a), an aggrieved party may move a trial court to

reconsider its grant ofsummary judgment. The trial court mayvacate its order if,
due to a cause listed in the rule, the order materially affected a substantial right


        6Both parties, directly or indirectly, analyze theWAC 162-16-230 factors for determining
whether a WLAD claimant is an employee or an independent contractor. That is not necessary in
this case, because both parties agree that Argo was nota Port Jobs employee. The question
here is not which Argo was—an employee or independent contractor—but whether or not she
was an independent contractor.



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No. 71306-0-1/11



of the party. CR 59(a). CR 59(a) lists nine such causes. Argo based her motion

on the final one—"(9) That substantial justice has not been done."

       However, CR 59 does not permit a litigant to propose new theories of the

case that could have been raised before entry of the adverse decision. Wilcox,

130 Wn. App. at 241. As this court has previously explained, this rule is in the

interests of justice:

       Civil Rule 59 does not permit a plaintiff, finding a judgment
       unsatisfactory, to suddenly propose a new theory of the case.
       JDFJ's motion for reconsideration was in essence an inadequate
       and untimely attempt to amend its complaint in general, violating
       equitable rules of estoppel, election of remedies, and the invited
       error doctrine. We refuse to permit such a perversion of the rules.

Int'l Raceway. Inc. v. JDFJ Corp., 97 Wn. App. 1, 7, 970 P.2d 343 (1999)

(footnote omitted).

       As the trial court explained, Argo's "[third-party beneficiary] theory was

never briefed or argued during eitherofthe previous hearings and Plaintiff has
offered no explanation for herfailure to do so." It was, therefore, not an abuse of
discretion for the trial court to deny Argo relief on that basis.

                                           B


       The trial court also denied the reconsideration motion on the ground that

Argo was not a third-party beneficiary of the contract between Port Jobs and
Neighborhood House. There was no error in this ruling.
        "The creation of a third-party beneficiary contract requires that the parties

intend that the promisor assume a direct obligation to the intended beneficiary at
the time they enter into the contract." Burke &Thomas. Inc. v. Int'l Org, of



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No. 71306-0-1/12



Masters. Mates & Pilots, 92 Wn.2d 762, 767, 600 P.2d 1282 (1979) (emphasis

added).

      The "intent" which is a prerequisite of the beneficiary's right to sue
      is "not a desire or purpose to confer a particular benefit upon him,"
      nor a desire to advance his interests, but an intent that the promisor
      shall assume a direct obligation to him. So long as the contract
      necessarily and directly benefits the third person, it is immaterial
      that this protection was afforded him, not as an end in itself, but for
      the sole purpose of securing to the promisee some consequent
      benefit or immunity. ... The [motive, purpose, or desire of the
      parties] is immaterial; the intention, as disclosed by the terms of the
      contract, governs.

81 A.L.R. 1271 (citation omitted) (quoting Bvram Lumber &Supply Co. v. Page,

109 Conn. 256, 146 A. 293 (1929)): accord Vikinostad v. Baggott, 46 Wn.2d 494,

282 P.2d 824 (1955). "The intention of the parties in this respect is determined

by the terms of the contract as a whole, construed in the light of the
circumstances under which it was made." 81 A.L.R. 1271: accord Postlewait

Constr., Inc. v. Great Am. Ins. Companies, 106 Wn.2d 96, 720 P.2d 805 (1986).

       Moreover, in order for a specific person to be a third-party beneficiary and

obtain resulting rights, the third party must be an intended beneficiary ratherthan
merely an incidental beneficiary. See Postlewait, 106 Wn.2d at 99 (trial court
properly dismissed construction company's claim since it was not intended third-
party beneficiary of insurance policy). "An incidental beneficiary acquires by
virtue of the promise no right against the promisor or the promisee."
Restatement (Second) of Contracts § 315 (1981). A third-party is an intended
beneficiary and can sue upon a contract if the contract is for his direct benefit.
Wolfe v. Morgan. 11 Wn. App. 738, 743, 524 P.2d 927 (1974). By contrast, a

person is considered an incidental beneficiary, and therefore cannot sue upon a


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No. 71306-0-1/13



contract, where the benefit obtained pursuant to the contract is merely incidental,

indirect, or inconsequential. Wolfe, 11 Wn. App. at 743. "It is not essential to the

creation of a right in an intended beneficiary that he or she be identified when a

contract containing the promise is made." 25 David K. DeWolf, et al,

Washington Practice: Contract Law and Practice § 12.2, at 370 (2014);

accord Boise Cascade Corp. v. Pence. 64 Wn.2d 798, 803, 394 P.2d 359 (1964).

       The current Restatement provides the following useful illustration of an

incidental beneficiary: "B contracts with A to buy a new car manufactured by C. C

is an incidental beneficiary, even though the promise can only be performed if

money is paid to C." Restatement (Second) of Contracts § 302 (1981),

cmt. e. The illustration allows a helpful comparison to this case.

       In this case, Argo brings an action against Port Jobs. Thus, the critical

question here is whether the terms ofthe Agreement as a whole, construed in
light ofthe circumstances under which it was made, indicate that Port Jobs and
Neighborhood House intended that Port Jobs would assume a direct obligation to
Argo at the time they entered into the contract. There is no such indication.
       Pursuant to the Agreement, Port Jobs promised, in pertinent part, to pay

Neighborhood House "an amount not to exceed $65,000" for the scope ofwork
set forth therein. Port Jobs' only obligation was to Neighborhood House. It

assumed no obligation—direct or otherwise—to Argo.

       This conclusion is consistent with the terms of the Agreement as a whole,

which indicate that Port Jobs and Neighborhood House intended that there would
be no legal relationship between Port Jobs and employees of Neighborhood


                                         13
No. 71306-0-1/14



House, of which Argo became one. To the extent that the Agreement

contemplates the possibility of a legal relationship between Port Jobs and

employees of Neighborhood House, it is to explicitly disclaim the existence of

such a relationship. Section X of the Agreement provides: "[Neighborhood

House] and its officers, employees, subcontractors and agents shall not be

considered employees, agents, or legal representatives of Port Jobs for any

purpose whatsoever." As the trial court astutely noted in its order denying Argo's

motion for reconsideration, "Section X of the contract is clear evidence of the

parties' intent that Neighborhood House employees not have any contractual

relationship with Port Jobs."

       The proposition that Argo was a third-party beneficiary of the contract is

further undermined by the fact that, over several years of recurring contracts,

Port Jobs did not, in fact, convey any benefits directly to Argo. From 2006 to

2012, Argo received wages and other compensatory employment payments and

benefits from Neighborhood House. By contrast, she "did not receive any health,

pension or other employment benefits from Port Jobs." Moreover, Argo does not

identify any wage or salary payments or any other significant compensatory

payments7 conveyed to her by Port Jobs.

        Indeed, this case is comparable to the Restatement illustration set forth

above. As B agreed to pay A in the illustration, Port Jobs agreed to pay

Neighborhood House. Moreover, as in the illustration, the money paid would

cause a third entity to receive monetary benefit. However, unlike in the

        7While undoubtedly much appreciated, we do not considerthe bestowing of Starbucks
giftcards a significant compensatory benefit.


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No. 71306-0-1/15



illustration, the payment from Port Jobs to Neighborhood House need not have

benefitted Argo at all, because she—unlike the car manufacturer—was not

specifically identified in any way. As with the car manufacturer in the illustration,

Argo is an incidental beneficiary of the contract between Port Jobs and

Neighborhood House.

       Argo, again like the car manufacturer in the illustration, may have

benefitted from the recurring, annual contracts between Port Jobs and

Neighborhood House. Indeed, it seems likely that she did, given that she was

terminated by Neighborhood House soon after the contractual relationship

between Neighborhood House and Port Jobs ended. However, any benefit she

derived was merely incidental. Neighborhood House was free to continue

employing Argo after the Agreement was terminated. It simply chose not to do
so. Argo has not established third-party beneficiary status.8
       Affirmed.



We concur:



                                                      CrThfT-



       8 Given our determination that Argo did not establish that she was a third-party
beneficiary of the Agreement between Port Jobs and Neighborhood House, we need not reach
the question ofwhether the provisions ofthe WLAD apply tothird-party beneficiaries.

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