       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DENISE SMITH, a single individual,        )      No. 74265-5-1
                                          )
                     Appellant,           )      DIVISION ONE
                                          )                                                        ,
       v.                                 )
                                                                                       C77
                                                                                       rn    rn
                                          )      UNPUBLISHED OPINION
SON ITROL PACIFIC, a Washington           )                                            N.)
corporation,                              )
                                          )
                     Respondent.          )      FILED: December 12, 2016
                                                                                             c7;
                                                                                                   <
                                          )

       LEACH, J. — Denise Smith sued her former employer, Sonitrol Pacific,

alleging several causes of action related to her termination, including a claim of

retaliation. The trial court dismissed her retaliation and emotional distress claims

on summary judgment, and Smith proceeded to trial on her remaining claims.

After an adverse jury verdict, Smith appeals the dismissal of her retaliation claim.

       She now claims that Sonitrol retaliated against her for reporting sexual

harassment, reporting her coworker's criminal background, and reporting her

supervisors' workday alcohol consumption. Because Smith did not plead two of

these theories in her complaint, we do not consider them. Sonitrol presented a

legitimate reason for her termination, and Smith did not produce evidence that

Sonitrol's reason was mere pretext. Thus, Smith's claim that Sonitrol fired her in

retaliation for reporting her supervisors' alcohol consumption also fails. We
No. 74265-5-1/2



affirm the trial court's dismissal of Smith's retaliation claim.

                                        FACTS

       Sonitrol installs and monitors alarm systems, including fire alarms.

Sonitrol employed Smith as an operator in Everett.1 Smith's duties as an

operator required her to follow up on activated alarms and dispatch emergency

services when necessary. If Sonitrol fails to respond properly to a fire alarm, it

risks losing its certification to monitor fire alarms.

                           Smith's Employment at Sonitrol

       For several years, Smith worked as an operator. Sonitrol considered her

to be a good employee and, in 2005, promoted her to shift supervisor. But in

2010, Smith began having problems at work and her performance deteriorated.

She had many unexcused absences. Coworkers complained about her

performance. In early 2012, Smith returned, at her request, to an operator

position.

       Between April and December of 2012, Smith received five written job

performance warnings. She received two warnings about her attendance and

three about her failure to respond to customer alarm issues or follow standard

operating procedure. Smith signed all but one of the warnings, acknowledging

that she "agree[d] with the Employer's Statement." Smith received the last notice

       1 Smith worked for Sonitrol from 1993 to 1994, but Sonitrol fired her when
she failed to report for work as scheduled. The company rehired her in 1997.
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on October 1, 2012. It cautioned her that another incident would result in a "2

week suspension without pay or immediate termination depending on the

severity of the incident."

        On January 9, 2013, Smith spoke with Human Resources (HR)

Representative Mattie MacKenzie. During that conversation, Smith accused Joe

Bullis, the general manager of Sonitrol's Everett branch, of consuming alcohol

during the workday. Smith claims she also told MacKenzie that Michelle Evans,

Smith's supervisor, consumed alcohol during the workday. MacKenzie conveyed

Smith's statements about Bullis's workday drinking to Beau Bradley, the

president of Sonitrol. Bradley told Bullis that any such conduct must immediately

stop.

        On January 15, 2013, Bradley met with Smith to discuss her complaint to

HR• and Smith's poor performance. During that meeting, Smith told Bradley that

Jeff LaMont, a Sonitrol employee, had a criminal background. LaMont admits

that he has a criminal conviction in Washington for impersonation. The record

contains no evidence about the circumstances of this crime.

        The same day, a fire alarm activated on Smith's console. The alarm came

from Central Elementary, a public elementary school, while students were still in

class. Smith did not respond to the alarm for about 17 minutes. When she did

respond, she first called the school to ask if the fire department had been

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dispatched. She then called the fire department. This violated Sonitrol's fire

alarm policy which states, "WE DO NOT EVER CALL ANYONE BEFORE

DISPATCHING THE FIRE DEPARTMENT ON FIRE ALARMS!"

          When reporting the incident, as procedure required, Smith stated,

"Received FIRE ALARM. Dispatched FD. Called premise[s] and spoke to

Receptionist." This description made it appear as if she had followed protocol.

Sonitrol did not learn of the 17-minute delay until a school representative

contacted Sonitrol to learn the reason for the delay in calling the fire department.

On January 22, 2013, Bullis contacted Bradley and told him about this incident.

Bradley then decided to fire Smith.

                                  Procedural Facts

          Smith sued Sonitrol, alleging discrimination, hostile work environment,

retaliation, negligent infliction of emotional distress, and negligent supervision.

For her retaliation claim, she alleged Sonitrol fired her for reporting alcohol

consumption. Specifically, under the heading "RETALIATION," her complaint

states,

          Plaintiff brought to the attention of HR the fact that several
          managers at this office location were consuming alcohol during the
          workday. She brought to the attention of HR that the consumption
          of alcohol was a widely tolerated practice within this office.

          Plaintiffs [sic] employment was terminated shortly after bringing
          these concerns to the attention of HR as well as having a personal
          conversation with the owner of this Sonitrol business.
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No. 74265-5-1 /5



       In her deposition, Smith admitted that her alcohol consumption report

provided the only basis for her retaliation claim.

              Q:    Ms. Smith, in your complaint you allege that you were
       terminated in retaliation for telling HR and Beau Bradley that
       managers Joe Bullis and Michelle Evans were consuming alcohol
       during the day; is that correct?

              A:     That is correct.

               Q:     And we have seen—we have established yesterday
       that in the nine months before you were terminated, you received at
       least five write-ups. As you sit here today, is there any other
       reason why you believe you were terminated, other than in
       retaliation for telling HR and Beau Bradley about Mr. Bullis's and
       Ms. Evans' alleged drinking?

             A:    I believe that was—that is the reason I was
       terminated.

       Despite this testimony, in her response to Sonitrol's motion for summary

judgment, she asserted for the first time that Sonitrol fired her for reporting sexual

harassment and LaMont's criminal history.

       According to Smith, while working at Sonitrol, she experienced sexual

harassment. She claims that she complained to Evans about sexually oriented

comments and jokes about her sexual orientation, including comments by Evans

about her sexual orientation. Smith does not claim that she reported this sexual

harassment to HR or any manager besides Evans.

       The trial court dismissed Smith's retaliation claim and her negligent

infliction of emotional distress claim but permitted her other claims to proceed to

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No. 74265-5-1 /6



trial, where a jury ruled against her. Smith appeals only the dismissal of her

retaliation claim.

                            STANDARD OF REVIEW

       This court reviews a summary judgment decision de novo, considering the

record before the trial court in the light most favorable to the nonmoving party.2

However, "[t]he nonmoving party must set forth specific facts showing a genuine

issue and cannot rest on mere allegations."3 Summary judgment is appropriate

when no genuine issue as to any material fact exists.4

                                   ANALYSIS

       Smith makes two primary claims. First, she claims that the trial court read

her complaint too narrowly, limiting her retaliation claim to one based solely on

her alcohol consumption report. Second, she contends that she raised factual

issues about this retaliation claim. We disagree.

       In retaliation cases, Washington courts apply the same McDonnell

Douglas5 burden-shifting protocol used for discrimination claims.6 This requires



       2Camicia v. Howard S. Wright Constr. Co., 179 Wn.2d 684, 693, 317 P.3d
987 (2014).
      3 Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 132,
769 P.2d 298 (1989).
      4 CR 56(c); Camicia, 179 Wn.2d at 693.
      5 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.
Ed. 2d 668 (1973).
      6 Short v. Battle Ground Sch. Dist., 169 Wn. App. 188, 204, 279 P.3d 902
(2012).
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that Smith first establish a prima facie case of retaliation by showing that she

engaged in statutorily protected activity, that she suffered an adverse

employment action, and that her protected activity caused Sonitrol to take the

adverse action.7 If Smith establishes a prima facie case, the burden of

production shifts to Sonitrol to provide a legitimate, nonretaliatory reason for its

adverse employment action.8 If Sonitrol provides a legitimate, nonretaliatory

reason for its action, the burden shifts back to Smith to show that this reason was

actually a pretext for the true retaliatory purpose.8

       Smith alleges she engaged in the following statutorily protected activities:

reporting sexual harassment to management, reporting her coworker's criminal

background to management, and reporting her supervisors' workday alcohol

consumption to HR. Smith's claims that Sonitrol fired her because she reported

sexual harassment and LaMont's criminal background fail because she raised

them for the first time in her opposition to summary judgment, which did not

satisfy the requirements of notice pleading. As to her remaining retaliation

argument, Sonitrol had a legitimate, nonretaliatory reason to fire her, which Smith

does not show was a pretext for her termination. Therefore, we affirm dismissal

of her retaliation cause of action.

       7 Currier v. Northland Servs., Inc., 182 Wn. App. 733, 742, 332 P.3d 1006
(2014), review denied, 182 Wn.2d 1006 (2015); Short, 169 Wn. App. at 204.
      8 Short, 169 Wn. App. at 204.
       9 Short, 169 Wn. App. at 204-05.
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No. 74265-5-1/ 8



                           Scope of Retaliation Claim

      Smith's complaint describes one protected activity in connection with her

retaliation claim, reporting alcohol consumption.       Smith first identified new

allegedly protected activities in her opposition to Sonitrol's motion for summary

judgment. Thus, we first consider whether the allegations in Smith's complaint

allowed her to present evidence of her reports about sexual harassment and a

coworker's criminal history to defeat Sonitrol's summary judgment motion.

      CR 8 requires that a complaint include "(1) a short and plain statement of

the claim showing that the pleader is entitled to relief and (2) a demand for

judgment for the relief to which the pleader deems the pleader is entitled."1° "It

must identify the legal theories upon which the plaintiff seeks recovery."11 A

complaint that does not identify the legal theories upon which the plaintiff seeks

recovery does not give the opposing party fair notice of the claims it must defend

against.12 "Insufficient pleadings are, then, prejudicial."13 For this reason, a

plaintiff cannot raise new legal theories in response to a motion for summary

judgment without amending her complaint.14



      1°   CR 8(a).
      11 Camp    Fin., LLC, v. Brazington, 133 Wn. App. 156, 162, 135 P.3d 946
(2006).
      12  See Camp Fin., 133 Wn. App. at 162.
       13 Camp Fin., 133 Wn. App. at 162.
       14 Camp Fin., 133 Wn. App. at 162. The civil rules direct courts to grant
leave to amend freely when justice so requires. CR 15(a).
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      The trial court properly dismissed the retaliation theories raised for the first

time in Smith's summary judgment response. The court's decisions in Dewey v.

Tacoma School District No. 1015 and Kirby v. City of Tacoma" explain why. In

Dewey, the plaintiff claimed wrongful discharge in retaliation for whistleblowing

activities.17 In response to the defendant's motion for summary judgment, Dewey

asserted for the first time that his termination violated his First Amendment

rights."      Dewey's amended complaint did not expressly allege a First

Amendment claim, but the court still reviewed the complaint to see "whether the

necessary elements may be fairly inferred from [the] complaint."19 Because

Dewey had failed to allege facts to support two of the essential elements of his

First Amendment theory, he had failed to satisfy the requirements of notice

pleading 2O

      In Kirby, the plaintiff filed a "Notice of Claim" that referenced "constitutional

tort claims" but made no mention of free speech or the First Amendment.21 He

first raised his First Amendment claim in response to a defendant's summary

judgment motion.22 After noting the wide variation among constitutional tort

      15 95 Wn. App. 18, 974 P.2d 847 (1999).
      16 124 Wn. App. 454, 98 P.3d 827 (2004).
      17 Dewey, 95 Wn. App. at 22.
      18 Dewey, 95 Wn. App. at 23.

      19 Dewey, 95 Wn. App. at 23.
      20 Dewey, 95 Wn. App. at 24-25.
      21 Kirby, 124 Wn. App. at 470.
      22 Kirby, 124 Wn. App. at 469.
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No. 74265-5-1 /10



claims, the appellate court affirmed the dismissal of the First Amendment claim

because the plaintiff had insufficiently described it in his complaint and notice.23

The appellate court stated that defendants "should not be required to guess

against which claims they will have to defend."24

      As in Dewey and Kirby, Smith's claims that Sonitrol fired her in retaliation

for reporting sexual harassment and LaMont's criminal background fail because

she did not plead them. Her complaint does not expressly assert these claims,

and they cannot be inferred from the facts alleged. Smith concedes that no facts

in her complaint reference LaMont's criminal background or reporting his

background to management.25 And nowhere in her complaint does Smith allege

a causal connection between her reports of sexual harassment and her

termination. She alleges only that she "told Ms. Evans directly to stop making

these types of sexually oriented comments" and "told her directly to stop

physically touching her body in a sexually inappropriate manner."26 Thus, neither


      23   Kirby, 124 Wn. App. at 470.
       24  Kirby, 124 Wn. App. at 470.
        25 Although we do not reach the merits of Smith's claim of retaliation for
reporting a coworker's criminal background, we note that it would fail because,
for this theory, she relies on Oregon law to show that her activity was statutorily
protected. ORS § 659A.199(1). Smith does not explain how reporting a
coworker's past crime is a statutorily protected activity in Washington.
        26 Had we concluded that Smith adequately pleaded retaliation for
reporting sexual harassment, she still fails to present evidence of causation. To
show a causal link, Smith must present evidence that retaliation was a
substantial factor in Sonitrol's decision to fire her, requiring that the decision-
maker knew about the protected activity. See Allison v. Hous. Auth. of City of
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No. 74265-5-1 / 11



her reporting sexual harassment theory nor her reporting LaMont's criminal

background theory can fairly be inferred from her complaint.

       Smith asserts that the pleading standards are more flexible than Sonitrol

suggests. But we find the case Smith relies on, Bryant v. Joseph Tree, Inc.,27

distinguishable. Bryant does say that notice pleading does not require parties to

state all the facts supporting their claims in their initial complaint.28 But in Bryant

the court decided an entirely different question: did a complaint lack an adequate

legal and factual basis and subject counsel to CR 11 sanctions? "The purpose

behind CR 11 is to deter baseless filings and to curb abuses of the judicial

system."29 By contrast, in this case we must decide if Smith's complaint

adequately apprised Sonitrol of the retaliation claims she raised in her summary

judgment response.39 While our notice pleading standards did not require that

Smith state every fact supporting her case, she needed to provide enough

information to give Sonitrol adequate notice of her claims.




Seattle, 118 Wn.2d 79, 81, 821 P.2d 34 (1991). But Smith provides no evidence
that Bradley knew Smith had asked Evans to stop her harassing behavior when
he decided to fire Smith. Taken in the light most favorable to Smith, the facts do
not show "a causal link between the activity and the adverse action." Short, 169
Wn. App. at 205 (citing Milligan v. Thompson, 110 Wn. App. 628, 638, 42 P.3d
418 (2002)).
       27 119 Wn.2d 210, 222, 829 P.2d 1099 (1992).
       28 Bryant, 119 Wn.2d at 222.
       29 Bryant, 119 Wn.2d at 219.
       3° See Camp Fin., 133 Wn. App. at 162.
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No. 74265-5-1/12



       Smith provides no reason for the uninformative state of her complaint.

Her own testimony provides the facts she now relies on. Thus, when she filed

the complaint, she had the information necessary to plead all the statutorily

protected activities alleged in her summary judgment response. Further, if

discovery had revealed new facts supporting new theories, she should have

amended her complaint. Finally, Smith admitted in her deposition that reporting

drinking provided the only basis for her retaliation cause of action. In the

complete absence of reference to other theories in her complaint and in light of

her deposition testimony, Sonitrol could not have anticipated having to defend

against these theories.

        Legitimate, Nonretaliatory, Nonoretextual Reason for Termination

       Smith adequately pleaded only one theory of retaliation, termination for

complaining about her supervisors' workday alcohol consumption. We assume

for purposes of this opinion that Smith established a prima facie case for

retaliation on this theory.31 But we affirm dismissal of this claim because Sonitrol




       31 TheWashington Industrial Safety and Health Act of 1973, ch. 49.17
RCW, through its retaliation statute, RCW 49.17.160, provides protections for
employees who claim they were retaliated against for complaining about conduct
related to workplace safety. See Cudney v. ALSCO, Inc., 172 Wn.2d 524, 531,
259 P.3d 244 (2011), overruled on other grounds by Rose v. Anderson Hay &
Grain Co., 184 Wn.2d 268, 358 P.3d 1139 (2015). We note, however, that the
statute requires an employee first to file a complaint with the Department of
Labor and Industries, which Smith did not do.
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No. 74265-5-1 /13



produced evidence of a legitimate reason for her termination, which Smith does

not show was pretext.

      Smith's case fails because Sonitrol presented unchallenged evidence of a

legitimate, nonretaliatory reason for firing her.32 The record contains abundant

evidence of Smith's unsatisfactory performance. Sonitrol provided a record of

written warnings for unexcused absences, failure to respond to alarms, and

customer and coworker complaints. Long before her alleged statutorily protected

activity, Sonitrol warned her that the next violation could be grounds for

termination. Then she committed a serious violation of Sonitrol's policy that

could threaten its business. After repeated warnings, her failure to respond to

the fire alarm promptly, failure to follow proper procedure, and attempt to cover

up her error, gave Sonitrol a more than sufficient reason to fire her. Sonitrol

satisfied its burden to produce evidence of a legitimate reason for termination.

      Smith did not rebut this evidence by producing evidence that Sonitrol's

proffered reason was merely pretextual. An employee can show that the

employer's stated reason for the termination is pretextual by demonstrating

"(1) the company's reasons have no basis in fact; or (2) if they have a basis in

fact, by showing that they were not really motivating factors; or (3) if they are

factors, by showing they were jointly insufficient to motivate the adverse


       32   See Short, 169 Wn. App. at 204-05.
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No. 74265-5-1/14



employment decision!"33 Courts may properly dismiss a claim of retaliation when

an employee fails to meet her burden to produce evidence showing that the

employer's legitimate reasons for the adverse action were pretextual.34

      First, considerable unchallenged evidence establishes Sonitrol's reasons.

Written warnings signed by Smith show Sonitrol warned her about her

performance. And computer software and e-mails with the school documented

her fire alarm error. Second, Smith offered no evidence that these were not the

motivating factors. She claims that other employees had missed fire alarms and

had not been terminated, but Bradley testified that no employee had ever had as

many violations. Finally, because missing fire alarms could lead to Sonitrol

losing its license to conduct its business, termination was not a disproportionate

punishment for someone with previous violations. Smith failed to meet her

burden to produce evidence that Sonitrol's reason was pretext.

                                 CONCLUSION

      We affirm dismissal of Smith's retaliation cause of action. Because

Smith's claims that she was terminated for reporting sexual harassment and her



      33 Rice v. Offshore Sys., Inc., 167 Wn. App. 77, 89-90, 272 P.3d 865
(2012) (quoting Selisted v. Wash. Mut. Say. Bank, 69 Wn. App. 852, 859 n.14,
851 P.2d 716 (1993)).
      34 See Crownover v. Dep't of Transp., 165 Wn. App. 131, 148-49, 265
P.3d 971 (2011); Campbell v. State, 129 Wn. App. 10, 23, 118 P.3d 888 (2005);
Renz v. Spokane Eye Clinic, P.S., 114 Wn. App. 611, 624-25, 60 P.3d 106
(2002).
                                     -14-
No. 74265-5-1/15



coworker's criminal background were not adequately pleaded, we do not

consider them. As to her claim that she was fired in retaliation for reporting

alcohol consumption, Sonitrol had a legitimate, nonpretextual reason for the

termination. We affirm.




WE CONCUR:



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