Martha Woods, Appellant V. Department Of Corrections, Respondent (Majority)

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r' a DI 2OIiiSE: - FILED OF A P P r ISIS N 9 PH 9: 22 VIA r IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II No. 44295 -7 -II MARTHA LEAH WOODS, Appellant, v. UNPUBLISHED OPINION WASHINGTON STATE DEPARTMENT OF CORRECTIONS, and TERRI VAN AUSDLE and " JOHN DOE VAN AUSDLE and their marital community, Respondents. LEE, J. judgment in favor Martha Leah Woods appeals the superior court' s order granting summary of her former employer the Department of Corrections ( DOC). The superior court dismissed all of Woods' s employment discrimination claims, her breach of contract claim, and her negligent supervision and retention claim. She also argues that the superior court erred in striking her expert' s report. We affirm. We also deny Woods' s request for attorney fees. FACTS A. 2005 SETTLEMENT AGREEMENT AND TRAINING In September 2005, Woods entered into a settlement agreement with the DOC resolving a different lawsuit, pending grievances, and public records requests Woods filed against the DOC. L No. 44295 -7 -II Under the terms of the settlement, Woods was transferred from her then current position as a secretary supervisor to a position as a corrections records specialist in the Lakewood field office beginning her September 12, 2005. Woods was required to serve a 12 -month trial service period in In regard to training for Woods' s new position, the settlement agreement new position. stated: The training needs for Martha Woods shall be established between the 6. supervisor of [Woods' s new position] and Martha Woods no later than September The Department of Corrections recognizes that Martha Woods will 30, 2005. need specific training. job - The Department of Corrections agrees that in the absence of any other problem, lack of training or experience alone, will not be sufficient reason for reversion within the first six months of the trial service. Any dispute regarding the necessity for training shall be finally determined by the second line supervisor. Martha Woods waives any further right of appeal or right to grieve the decision. Clerk' s Papers ( CP) at 26. When Woods originally transferred to the records unit in the Lakewood field office, she was by supervised Dahlstrom, containing she Sharon Dahlstrom. primarily did office procedure records for During the time that Woods was supervised by copying handling and records. filing. She also studied the records guide In November 2005, Dahlstrom retired, and Terri Van Ausdle became Woods' s direct supervisor. A training plan was created for Woods by the human resources supervisor and reviewed and approved training by plan on train Woods in Van Ausdle. Van Ausdle and Woods discussed and finalized the formal December 5, 2005. particular areas. The formal training plan assigned specific employees to Van Ausdle signed off on Woods' s completion of the formal training plan in May 2006. 2 No. 44295 -7 -II B. SEPTEMBER 2005- AUGUST 2006: RECORDS UNIT TRANSFER Van Ausdle' s initial evaluation of Woods' s work performance was positive. However, Woods claims that Van Ausdle became more critical of her work and documented numerous errors after January 19, 2006, when Woods disclosed her fragile mental state to Van Ausdle. Van Ausdle does not remember Woods disclosing anything about her mental state. Van Ausdle' s January 2006 evaluation stated that Woods was difficult to train and did not follow directions completed the Woods' well. training plan, s subsequent evaluations Van Ausdle provided continued Woods with to decline. a " After Woods Memo of Counseling" documenting many areas in which she needed to improve and providing examples of Woods' s inappropriate behavior. CP at 177 -88. Woods perceived much of Van Ausdle' s behavior as harassing. Her complaints are thoroughly documented in the grievance she filed with the DOC regarding a hostile work environment. She included allegations that Van Ausdle humiliated and belittled her. She also stated that Van Ausdle was hypercritical of her work and harassed her by documenting all of her behavior in the office. After an investigation, which included speaking to many other people in the records unit, the DOC determined that Van Ausdle' s behavior was not discriminatory or based on a discriminatory intent. However, the investigation did note problems with Van Ausdle' s communication and supervisory style, and provided recommendations for dealing with these problems. C. MEDICAL LEAVE In early August 2006, Woods left the records unit and went on medical leave for a back injury (unrelated to her records unit position or mental condition). 3 Woods had not yet completed No. 44295 -7 -II her year one - trial was on medical service period leave, ending September 12, 2006. she received Department Labor of During the period of time Woods and Industries ( L &I) benefits. On February 7, 2007, while still on medical leave, Woods went to the records unit to get some of her belongings that were left in her desk. In her declaration, Woods stated: On DOC to building February 7, 2007, [ Woods] collect some personal with returned to the unit while still employed by As [ Woods] prepared to leave the belongings.... boxes in hand, Van Ausdle approached [ Woods] from behind, stomping loudly and placing her legs right next to [ Woods' s] as if to trip her. Van Ausdle' s left leg touched [ Woods' s] clothing and her stomach touched Woods' s] upper buttocks area. CPat521. D. REQUEST FOR REVERSION TO SECRETARY SUPERVISOR In June 2007, while still on L &I leave, Woods sent the DOC an e -mail requesting reversion to position prior an open secretary to the settlement supervisor position. agreement Woods had held a secretary supervisor transferring her to the records unit. In her e -mail, she stated that she was requesting to revert back to the secretary supervisor position, and only that position, and that the reversion would be effective on the day she obtained the secretary supervisor position. Bonnie Francisco from the human resources department responded to Woods' s e -mail, stating that she was treating Woods' s request as a formal request for voluntary reversion under the terms of the Collective Bargaining Agreement (CBA). Because Woods was on medical leave and receiving L &I benefits, the DOC needed information regarding whether Woods could perform the job with or without accommodation. Her doctor had filed reports stating that she could be placed on light modified duty, but probably . should not return to working with Van Ausdle because of the stress. He had not reviewed any documents specifically related to the job description and essential functions of the secretary 4 No. 44295 -7 -II supervisor position. On June 21, 2007, the DOC requested that Woods obtain documentation from her doctor indicating whether she could perform the essential elements of the secretary supervisor position, with or without accommodation. On June 28, Woods stated that she would have her doctor evaluate the job description and commuting requirements. administrator, sent Woods When DOC did not hear from Woods, Armando Mendoza, the field a letter on July 26, stating that because they had not received documentation approving her for work, she was now eligible to be placed on the internal layoff list per the terms of the CBA. Woods filed a grievance alleging that the DOC' s failure to provide her with a reversion discriminatory. was . The DOC investigated this grievance. After reviewing the events leading up to the denial of the reversion and the terms of the CBA, the investigation, found that Mendoza and Francisco properly complied with the terms of the CBA and did not engage in discriminatory action. E. EMPLOYMENT DISCRIMINATION SUIT On September 30, 2009, Woods filed complaint alleged the following claims suit against against the the DOC DOC: ( 1) and Van Ausdle. Woods' s hostile work environment, disparate treatment, failure to provide reasonable accommodation, and retaliation in violation of the Washington Law Against Discrimination ( WLAD); ( 2) breach of contract; and ( 3) negligent supervision and retention. The DOC moved for summary judgment. On November 8, 2012, Woods filed a report by Dr. Gary M. Namie opining on the effect of Van Ausdle' s behavior on Woods. The DOC moved to strike the report as untimely. The trial court granted the motion. 5 No. 44295 -7 -II On November 9, the superior court heard the motion for summary judgment. The superior court granted the DOC' s motion for summary judgment and dismissed all of Woods' s claims with prejudice. Woods appeals. ANALYSIS Woods argues that the superior court erred in excluding Dr. Namie' s report. The superior court did not abuse its discretion by excluding the report because Woods did not timely file the report. Woods also argues that the superior court erred in granting the DOC' s motion for summary judgment. Woods raises numerous claims, and her arguments are varied. First, her claim of a hostile work environment was based on Van Ausdle' s conduct toward her during her time at the records unit. The superior court did not err by granting summary judgment as to the hostile work environment claim because the statute of limitations barred her claim and because she failed to make a prima facie case of discriminatory intent. Second, Woods claims that she was subject to disparate treatment because she was separated from service rather than being granted her- requested rev. rsion. e The superior court did not err by granting summary judgment because Woods cannot identify an appropriate comparator to demonstrate disparate treatment. Third, she claims that the DOC failed to accommodate her disability by separating her from service without providing an accommodation for her reversion. The superior court properly granted summary judgment because Woods failed to make a prima facie case of failure to accommodate by failing Woods that claims her to demonstrate that separation from she reasonably state service was cooperated with retaliatory. the DOC. Fourth, The superior court properly granted summary judgment because Woods fails to demonstrate a prima facie case by showing a 6 No. 44295 -7 -II causal connection between her protected activities and the DOC' s adverse employment action. Finally, Woods makes a claim for breach of contract and tort claims for negligent supervision and retention. The superior court did not err by granting summary judgment as to Woods' s contract or tort claims. I. EXCLUSION OF DR. NAMIE' S REPORT Woods argues that the superior court improperly excluded Dr. Namie' s report, alleging the superior court failed to conduct a Frye' hearing to determine the admissibility of her expert' s report. Because that the superior court did not abuse its discretion in excluding the report as untimely, we do not reach the Frye issue. We review a trial court' s decision to exclude an untimely declaration or report for an abuse of discretion. Southwick v. 292, 301, 186 P. 3d 1089 ( 2008) ( P. 2d 1188 ( 1987)). Seattle Police Officer John Doe No. 1, et al., 145 Wn. App. citing Brown v. Peoples Mortg. Co., 48 Wn. App. 554, 559, 739 In Southwick, the appellate court affirmed the trial court' s decision excluding an expert' s affidavit from consideration in a summary judgment motion because the affidavit was untimely. 145 Wn. App. at 301 -02. Here, Woods filed Dr. Namie' s report and affidavit with the court on November 8, 2012, just one day before the superior court was scheduled to hear the summary judgment motion. The DOC had been seeking Woods' s expert' s report for approximately two years prior to this disclosure; but Woods filed Dr. Nainie' s report to the DOC just one day before the summary judgment 1 hearing. Under these circumstances, the disclosure of Dr. Namie' s report was Frye v. United States, 293 F. 1013 ( D. C. Cir. 1923). 7 No. 44295 -7 -II untimely. See CrR 56( c) ( requiring that opposing affidavits be filed no later than 11 calendar days prior to the summary judgment hearing). The superior court' s decision to exclude Dr. Namie' s report was not based on its admissibility, but rather on Woods' s discovery violation and her late disclosure of the report. Accordingly, Woods' s argument regarding the necessity of the Frye analysis is irrelevant, and we hold that the superior court did not abuse its discretion by excluding the report because it was untimely. II. SUMMARY JUDGMENT CLAIMS A. WLAD CLAIMS Wood' s complaint alleged the following WLAD claims against the DOC: hostile work environment, disparate treatment, failure to accommodate, and retaliation. The superior court properly granted summary judgment in favor of the DOC on all of Woods' s WLAD claims. The WLAD prohibits employment discrimination based on sensory, mental, or physical disability. RCW 49. 60. 030( 1). Summary judgment is often inappropriate in discrimination cases because the WLAD is to be liberally construed and the evidence will generally result in competing inferences of both discrimination and nondiscrimination that must be resolved by a jury. Frisino v. Seattle Sch. Dist. No. 1, 160 Wn. App. 765, 777, 249 P. 3d 1044, review denied, 172 Wn.2d 1013 ( 2011). However, summary judgment is appropriate when the plaintiff fails to raise a genuine issue of material fact as to one or more prima facie elements of the plaintiff' s discrimination claims. Frisino, 160 Wn. App. at 777. 1. Hostile Work Environment a. Statute of Limitations 8 No. 44295 -7 -II As an initial matter, we note that Woods' s hostile work environment claim arises from she worked at the events while hostile work environment claim records is barred unit ( which was by the statute of before September 2006) limitations. Thus, her 2 Woods' s brought her claim for hostile work environment under chapter 49. 60 RCW. All actions brought under chapter 49.60 RCW are subject to a three -year statute of limitations. Goodman v. The Boeing Co., 75 Wn. App. 60, 77, 877 P. 2d 703 ( 1994), aff'd, 127 Wn.2d 401 1995). Woods' s hostile work environment claim under chapter 49. 60 RCW is based on Van Ausdle' s conduct towards her during Woods' s time assigned to the records unit. Woods worked at the records unit from September 2005 until August 2006; therefore, claims filed in September 2009 for acts occurring during the period of time Woods worked at the records unit are outside of the statute of limitations and are barred. Woods asserts that there was one act on February 7, 2007, that was part of a series of acts constituting repeated conduct, and thus, the claims are not barred by the statute of limitations. But this particular act was not part of the series of acts, and therefore, the statute of limitations applies and bars Woods' s claim. In Antonius v. King County, 153 Wn.2d 256, 103 P. 3d 729 ( 2004), our Supreme Court articulated the rule for determining when the statute of limitations bars a claim based on a series 2 Woods' s claims for failure to accommodate, disparate treatment, and retaliation all result from her request for reversion and separation from state employment which occurred within the statute of limitations. 153 Wn.2d at 273 -74. 9 No. 44295 -7 -II on discriminatory acts3 by adopting the analysis in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 ( 2002): Under Morgan, a " court' s task is to determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and, if so, whether any act falls within the statutory time period." Morgan, 536 U.S. at The acts must have some relationship to each 120. other to constitute part of the same hostile work environment claim, and if there is no relation, or if "for some other reason, such as certain intervening action by the employer" the act is " no longer part of the same hostile environment claim, then the employee cannot recover for the previous acts" as part of one hostile work environment claim. Morgan, 536 U. S. at 118. 153 Wn.2d at 271. "[ A] gap, in and of itself, is not a reason to treat acts occurring before and after that gap as not constituting parts of the same unlawful employment practice under Morgan." Antonius, 153 Wn.2d at 272. Here, the one act that Woods relies on is not part of the same series of events contributing to a hostile work environment such that the rule in Antonius makes her claim timely. Woods claims she was subjected to a series of acts that constituted a hostile work environment during the time she worked for Van Ausdle in the records unit. However, Woods stopped working in the records unit in August 2006 when she went on medical leave. While she was still on medical leave, she went to her office in February 2007, and was allegedly harassed when Van Ausdle walked up behind her in a manner Woods perceived as intimidating. 3 Antonius distinguished claims for a hostile work environment, which is based on a series of acts, from discrimination claims based on a single, discrete act such as termination, failure to promote, refusal to hire, etc. Antonius, 153 Wn.2d at 264 ( citing Nat' l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, environment claims "' are repeated conduct. "' 108 -13, 122 S. Ct. 2061, 153 L. Ed. 2d 106 ( 2002)). different in kind from discrete Antonius, 153 Wn.2d at acts' and `[ Hostile work t]heir very nature involves 264 ( quoting Morgan, 536 U.S. at 115). For claims based on a discrete act the statute of limitations clearly runs from the date the act occurred. Antonius, 153 Wn.2d at 264. 10 No. 44295 -7 -II This is not the type of series of acts contemplated by Anotonius and Morgan. For example, in Morgan, the United States Supreme Court contemplated a hypothetical where either 1) a person was subject to continuing harassment over 400 consecutive days and files a claim on day 118. 401 or ( 2) a person was subjected to harassment for days 1 - 100 and on day 401. 536 U.S. at The court did not see a significant difference between the two hypotheticals because both created the same hostile work environment for the employee. Similarly, in Antonius, the plaintiff was subjected to harassment when she worked at the Seattle jail, then transferred to a female jail where she was not subjected to harassment, and later transferred back to the Seattle jail. 153 Wn. 2d at 259. Our Supreme Court stated that, as a matter of law, the gap did not bar an action based on the earlier incidents, seemingly based on the idea that a series of acts was occurring that continually made the Seattle jail a hostile work environment for the plaintiff at all times when she was employed there. 4 Here, Woods did not return to work at the records unit after going on leave. Furthermore, the incident in February 2007 did not relate to the earlier incidents while Woods was working at the records unit. Woods complained that Van Ausdle was overly critical of her work, humiliated and belittled her about her work, and singled her out for harsh treatment regarding her work performance. did was not The incident in February 2007 occurred while Woods was on medical leave and have anything to do with that Van Ausdle apparently Woods personally bumped into her or her while work performance. All Woods stated walking up to her. The record does not show that Van Ausdle engaged in a confrontation with Woods, commented on her work or 4 In Antonius, the court ultimately remanded to the trial court because the trial court applied the wrong test to determine whether the statute of limitations barred the plaintiff' s claims. 11 No. 44295 -7 -II whether she would return, or engaged in any other behavior Woods had complained about. Further, Woods never returned to the records unit, so there was no ongoing harassment that continued to make the records unit a hostile work environment during the statute of limitations period. Therefore, the rule in Antonius does not apply here, and Woods' s hostile work environment is barred under the statute of limitations. Even assuming that the statute of limitations did not bar Woods' s hostile work environment claim, the superior court did not err in granting summary judgment and dismissing her claim. Prima Facie Hostile Work Environment Claim b. Woods has failed to present a prima facie case of discrimination arising from a hostile work To establish a prima facie case of disability discrimination resulting from a environment. hostile work environment, Woods must show that ( 1) she was disabled within the meaning of the antidiscrimination statute, ( her 2) the harassment was unwelcome, ( 3) the harassment was because of disability, ( 4) the harassment affected the terms and conditions of her employment, and ( 5) that harassment imputable to the was P. 3d 611 ( 2002). employer. Robel v. Roundup Corp., 148 Wn.2d 35, 45, 59 The fundamental point in a disability discrimination case is whether the employer acted with discriminatory intent or motive. Parsons v. St. Joseph' s Hosp. & Health Care Ctr., 70 Wn. App. 804, 807, 856 P.2d 702 ( 1993). Here, summary judgment was appropriate because Woods failed to raise a genuine issue of material fact as to whether Van Ausdle was acting with discriminatory intent. The record establishes that the DOC investigated Woods' s original discrimination grievance and found that Van Ausdle was using ineffective communication skills, for which the DOC recommended 12 No. 44295 -7 -II changes to her management style. But, the investigation did not reveal any discriminatory intent on Van Ausdle' s part. Moreover, Woods presented evidence establishing that, after she left the records unit, other members of the records unit filed grievances against Van Ausdle arising from similar behavior that Woods had complained of. Woods is correct in her assertion that these complaints establish that Van Ausdle was mean to her. But Woods has to do more than show Van Ausdle discrimination She also has to establish to her in order discriminatory intent. The additional complaints against Van Ausdle establish that Van Ausdle was mean treated the majority to of people support in the a records unit in the claim. same manner as Woods. Accordingly, there is nothing in the record, outside of Woods' s speculation, that establishes Van Ausdle was acting with discriminatory intent. Failure of proof on any one element of a prima facie case makes summary judgment proper. Because Woods has failed to raise a genuine issue of material fact as to Van Ausdle' s discriminatory intent, the superior court properly granted summary judgment of her hostile work environment claim. Disparate Treatment 2. Woods claims that she was subject to disparate treatment because she was placed on the internal layoff list when other people who had complained about Van Ausdle' s behavior were not placed on the internal layoff list. However, contrary to her assertion, Woods has failed to identify any appropriate comparator to establish a prima facie claim of disparate treatment. To belongs to establish a prima facie a protected class; ( employment than a case of disparate treatment, Woods must show that she ( 1) 2) was treated less favorably in the terms and conditions of her similarly situated, nonprotected 13 employee; and ( 3) the nonprotected No. 44295 -7 -II comparator" was 124 Wn. who misguided. substantially the filed grievances against Domingo same work. 71, 81, 98 P. 3d 1222 ( 2004). App. employees doing v. Boeing Emps. ' Credit Union, Woods compares her situation to other records unit Van Ausdle and were not fired. Woods' s position is To support her prima facie claim, she would need to demonstrate that she was treated differently than another employee who had been laid off per the terms of the CBA after attempting to obtain a reversion when returning from L &I leave. She has not done so. Without an appropriate comparator, Woods cannot show that she was treated differently based on belonging to a protected class, and she fails to raise a genuine issue of material fact as to one of the elements of a prima facie case for disparate treatment. The superior court did not err when it granted summary judgment on Woods' s disparate treatment claim. Failure to Accommodate 3. Woods claims that the DOC failed to accommodate her disability by refusing her request for reversion to a secretary supervisor position. Under RCW 49. 60. 180, an employer is liable for discrimination if the employer fails to accommodate an employee' s disability. It is unclear whether Woods is arguing that the DOC failed to accommodate her disability related to the back injury or arguing that the DOC failed to accommodate her mental condition. Regardless, both claims fail, and the superior court properly granted summary judgment. If Woods' s claim is based on the DOC' s failure to accommodate her back injury, then she failed to cooperate with the DOC to establish an appropriate accommodation and, thus, failed to make a prima facie case of failure to accommodate. If Woods is claiming that reversion was a necessary accommodation due to her mental condition and working with Van Ausdle, then the 14 No. 44295 -7 -II requested accommodation is unreasonable as a matter of law, and she has failed to make a prima facie case for failure to accommodate. To establish a prima facie case of failure to accommodate, the employee must show that he or she ( 1) had a sensory, mental, physical abnormality that substantially limited his or her ability to perform the reasonable without job; ( 2) was qualified to perform the essential functions of the job with or accommodation; ( 3) gave the employer notice of the disability and its accompanying substantial limitations; and ( 4) after notice was given, the employer failed to adopt that measures medically necessary to were accommodate Foodmaker, Inc., 152 Wn.2d 138, 145, 94 P. 3d 930 ( 2004). disability. the Riehl v. If the employee fails to establish a prima facie case of failure to accommodate, the employer is entitled to judgment as a matter of law. Hill v. BCTIIncome Fund - , 144 Wn.2d 172, 181, 23 P. 3d 440 ( 2001). I The process for accommodating an employee' s disability relies on cooperation between employees and employers, as well as open communication between the parties. Goodman v., 127 Wn.2d at 408 -09. Although the employer has a duty to determine the extent of the employee' employee must give notice s 127 Wn.2d by disability, at 409. And, ' explaining the 178 Wn. App. the to trigger the employer' s duty. Goodman, the employee retains a duty to cooperate with the employer' s efforts disability and the employee' s qualifications. "' 850, 876, 316 P. 3d 520 ( 2013) ( Brownfield v. City of Yakima, quoting Frisino, 160 Wn. App. at 779 -80). Here, Woods failed to cooperate with the DOC to establish a reasonable accommodation with regard to her back injury. Woods failed to provide the DOC with information about whether she was able to perform the essential functions of the job, or if she would need an accommodation in order to do so. After requesting this information, Woods stated that she 15 No. 44295 -7 -II . would get the information from her doctor; however, she did not communicate any further with the DOC after eventually able DOC about the to wait for that. to Woods claims that the DOC acted inappropriately because she was the obtain delay or the an employee to appropriate reason documentation later. However, she never informed the for it. We do not agree that an employer should be expected respond when there is no communication from the employee. By failing to communicate with the DOC and not providing documentation regarding her ability to perform the essential functions of the job and what accommodations, if any, would be necessary, Woods failed in her and the App. at duty to "' cooperate with the employer' s efforts by explaining the disability Brownfield, 178 Wn. App. at 876 ( quoting Frisino, 160 Wn. employer' s qualifications.'" 779 -80). Accordingly, she has failed to establish a prima facie failure - accommodate to- case. In addition to a duty to cooperate, the accommodation requested by the employee must be If Woods' s claim is that the reversion request was an accommodation for her mental reasonable. disability, the accommodation is, as a matter of law, unreasonable, and the DOC had no duty to provide her with the reversion as an accommodation. The employee bears the burden of showing that there was a reasonable accommodation Wn.2d 629, 643, 9.P. 3d 787 ( 2000), Wn.2d 214, available. Pulcino overruled on other grounds 137 P. 3d 844 ( 2006). v. Fed. Express by McClarty v. Corp., 141 Totem Elec., 157 Generally, whether an employer has made reasonable accommodations is a question of fact for a jury; however, certain requests are, as a matter of law, unreasonable. Pulcino, 141 Wn.2d at 644. For example, an employer is not required to reassign an employee to a position that is already occupied, to create a new position, or to eliminate or reassign essential job functions. Pulcino, 141 Wn.2d 16 at 644. And, an employer has no duty to No. 44295 -7 -II a new supervisor as provide a reasonable accommodation. Snyder v. Med. Serv. Corp., 145 Wn.2d 233, 240 -41, 35 P. 3d 1158 ( 2001). In Snyder, the employee' s conflicts and encounters with her Snyder is controlling here. supervisor resulted in traumatic stress syndrome. post - 145 Wn.2d at 237. Although she could perform the essential requirements of her job, she claimed that her mental condition prevented her from being able to perform her job under her current supervisor. Snyder, 145 Wn.2d at 241. The court rejected the accommodation her employee' s employer was contention required to that a new provide, supervisor was holding that " if [the a reasonable employee] can perform the job, then she has no disability requiring accommodation simply because she has a personality conflict with her Snyder, 145 Wn.2d at 241. supervisor." Here, Woods may have had mental conditions associated with, or aggravated by, her relationship position or Van Ausdle. But that alone does not require the DOC to reassign her to a new with provide her with a new supervisor. Woods has not presented any evidence establishing the need for an accommodation for her mental health condition beyond working with Van Ausdle. For example, all of her medical documentation states that it would probably be best for her mental condition if she did not return to working in a stressful environment with Van Ausdle, but they do not include any additional restrictions or accommodations. Therefore, the only accommodation Woods was requesting related to her mental condition was essentially a . new supervisor which is, as a matter of law, an unreasonable accommodation. Thus, Woods has failed to raise any genuine issue of material fact as to an element of a prima facie case for failure to accommodate. Accordingly, the superior court did not err by granting DOC' s motion for summary judgment. 17 No. 44295 -7 -II Retaliation 4. Woods claims that the DOC retaliated against her by refusing her request for reversion and ultimately terminating her employment in retaliation for filing grievances alleging discrimination and posting on a message board bullying about in the RCW workplace. 49. 60.210 protects employees from retaliation for engaging in protected activities opposing an employer' s action forbidden by the WLAD. To survive a motion for summary judgment, the employee must first establish a prima facie P. 2d 18 ( 1991). he Wilmot case of retaliation. 3) adverse action. 579 ( 2005). Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 68, 821 To establish a prima facie case of retaliation, the employee must show that ( 1) or she engaged action, and ( v. in a statutorily protected activity, ( 2) the employer to adverse employment there was a causal link between the employee' s activity and the employer' s Estevez v. Faculty Club of the Univ. of Wash., 129 Wn. App. 774, 797, 120 P. 3d If the employee successfully established a prima facie case for retaliation, the burden shifts to the employer to demonstrate a legitimate, non retaliatory explanation for its adverse employment decision. Wilmot, 144 Wn.2d at 68. If the employer demonstrates a legitimate, nonretaliatory reason for its action, the employee must produce evidence establishing that the employer' s stated reasons were pretext for discrimination. Wilmot, 144 Wn.2d at 68. If the employee fails to do so, no genuine issue of material fact exists and the employer is entitled to judgment as a matter of law. Barker v. Advanced Silicon Materials, LLC, 131 Wn. App. 616, 624, 128 P. 3d 633, review denied, 158 Wn.2d 1015 ( 2006). Woods failed to make a prima facie case for retaliation. Woods engaged in protected activities by filing antidiscrimination grievances and exercising her First Amendment rights to 18 No. 44295 -7 -II engage in internet addition, Woods' message boards regarding harassment s separation from bullying and in the workplace. employment was an adverse employment action. In However, Woods failed to establish a causal link between engaging in protected activities and the adverse employment protected Woods relies exclusively on drawing inferences from the timing of the action. activity and the adverse employment hoc5 ergo propter reasoning. essentially employing flawed post hoc action But, she fails to acknowledge that she initiated the process that resulted in the adverse employment action. Woods affirmatively requested the reversion, presumably with the understanding of the process in the CBA and the potential for being placed on the internal layoff list. Therefore, even when viewing the evidence in a light most favorable to Woods, it cannot be said that Woods has made a prima facie showing of retaliation. Woods has presented no evidence to establish a causal connection between the protected activity and the adverse employment action. Accordingly, Woods has failed to present a prima facie case of retaliation, and summary judgment was appropriate. Even if Woods established a prima facie case for retaliation, the DOC has established a legitimate, non -discriminatory reason for the adverse employment action, and Woods has failed to establish pretext. The DOC' s legitimate, nondiscriminatory reason for its action is that the DOC simply followed the terms for reversion established by the CBA, which it did. Woods appears to attempt to establish pretext by arguing that she requested reversion to a specific job and conditioned her request for reversion by stating that her request did not become effective 5" After this, therefore, because of this" which is the flawed premise that because one event follows another, it must be caused by the preceding event. 19 No. 44295 -7 -I1 she was until actually placed in the But there is nothing in the CBA that requested position. establishes this is the appropriate procedure for voluntary reversion. The CBA does not state that an employee may limit the reversion request to a specific job or specify that the reversion does not become effective until the employee gets the job he or she is seeking to revert to. Accordingly, Woods fails to present evidence establishing pretext, which is necessary to rebut the DOC' s legitimate, nondiscriminatory reason for the adverse employment action. Summary judgment was appropriate. CONTRACT AND TORT CLAIMS B. In addition to her WLAD claims, Woods filed claims for breach of contract and negligent supervision and retention. She alleges that the DOC breached the terms of the 2005 settlement agreement by not establishing a training plan by September 30, 2005, and by failing to ensure that she had input into her training supervision and retention of plan. Van Ausdle She also claims that the DOC was negligent in its as The superior court dismissed these a supervisor. claims on the DOC' s motion for summary judgment. The superior court did not err by granting summary judgment as to Woods' s breach of contract claim because Woods' s failed to raise a genuine issue of material fact as to whether there was a material breach of the settlement agreement. And, the superior court did not err in granting Woods' s motion for summary judgment as to the negligent supervision and retention claims because they are duplicative of her WLAD claims. We review a trial court' s summary judgment ruling Tower, LLC, 166 Wn.2d 510, 517, 210 P. 3d 318 ( 2009). de novo. Torgerson v. One Lincoln Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any 20 No. 44295 -7 -II genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. A material fact is one on which the outcome of the litigation depends in whole or in CR 56( c). part. Owners Ass 'n Bd. of Dirs. Atherton Condo. Apartment v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P. 2d 250 ( 1990). We consider " all the facts submitted and the reasonable inferences therefrom in the light favorable to the nonmoving party." most Atherton, 115 Wn.2d at 516. The moving party is held to a strict standard. Any doubts as to the existence of a genuine issue of material fact is resolved against Atherton, 115 Wn.2d at 516. Breach of Contract Claim 1. Settlement Green, 106 Wn. has to the moving party." show App. 3) damage resulting from the Servs., 110 Wn. App. general principles of contract 12, 20, 23 P. 3d 515 ( 2001). a contract, ( 2) existence of (1) the by agreements are governed material To prove a breach of contract claim, Woods a material breach of the terms of the contract, and breach. 51, 64, 38 P. 3d 383, law." Lavigne v. St. John Med. Ctr. review v. Dep' t of Soc. & denied, 146 Wn.2d 1023 ( 2002). Health A material breach is often defined as one that substantially defeats the purpose of the contract. Mitchell v. Straith, 40 Wn. App. 405, 410, 698 P. 2d 609 ( 1985) ( citing 17 AM. JUR. 2D CONTRACTS § 504, at 981 ( 1964)). Woods claims that there was a material breach of the settlement agreement because she did not have a collaborative training plan established by September 30, 2005. But, Woods cannot show that the breach was material, nor can she show that the breach, if any, resulted in damage. First, the plain language of the settlement agreement does not require that the DOC provide a final, a training plan collaborative training be implemented by plan by September 30, 2005. September 30. 21 It does not even require that Rather, it simply requires that training needs No. 44295 -7 -II to be Woods was receiving some form of training and training materials to study established. during the period of time when there was no formal training plan. And, by December 5, she and Van Ausdle had established a formal training plan that was implemented and later completed. Woods has failed to demonstrate how the delay in establishing the formal training plan substantially defeated the purpose of the contract, which was to provide Woods with training during her trial service period. In addition, Woods has failed to demonstrate how the failure to establish the training plan specifically by September 30, 2005, resulted in any damage. She did not leave the records unit because of lack of training, nor was lack of training the reason for her request for reversion or her ultimate separation from Therefore, Woods has not shown that, even if DOC employment. did breach the terms of the settlement agreement by not establishing the formal training plan by September 30, the breach caused damage. Therefore, the superior court properly granted the DOC' s motion for summary judgment on the breach of contract claim. Negligent Supervision and Retention Claims 2. The superior court also dismissed Woods' s claims for negligent supervision and retention. Woods failed to establish a separate legal basis for her negligent supervision and retention claims. Accordingly, the superior court did not err in granting the DOC' s motion for summary judgment. A claim for negligent supervision or retention can arise when an employer has a direct, independent Snohomish duty " to County, control 162 Wn. an employee App. 476, for the protection of a third 479, 271 P. 3d 254 ( 2011). person." LaPlant v. However, because an employer is vicariously liable for an employee' s conduct when acting within the scope of 22 No. 44295 -7 -II employment, a claim for negligent supervision or retention requires the plaintiff to show that the employee acted outside the scope of employment. LaPlant, 162 Wn. App. at 479 -80. " Under Washington law, therefore, a claim for negligent hiring, training, and supervision is generally improper when the employer concedes the employee' s actions occurred within the course and scope of employment." LaPlant, 162 Wn. App. at 480. Here, Woods has not established any legal basis to support a negligent supervision or retention claim. The DOC has conceded that, if Van Ausdle' s conduct was improper, it is vicariously liable for Van Ausdle' s conduct because she was acting within the scope of her Therefore, Woods has not demonstrated that Van Ausdle was acting outside the employment. scope of her employment giving rise to a separate claim of negligent supervision or hiring. ATTORNEY FEES Woods requests reasonable attorney fees under RAP 18. 1. cited to any legal authority for awarding her attorney fees in this court to award attorney fees advise us of Sole v. Austin attorney fees "[ or expenses." " the 1015 ( 1994)), review. denied, RAP 18. 1( a) allows this Argument and citation to authority are required under the rule to appropriate grounds U.S. Bank of Wash., case. i] f applicable law grants to a party the right to recover reasonable for an award of Corporate Business Park, LLC, 138 Wn. v. However, Woods has not attorney fees." App. Bishop of Victoria Corp. 443, 462, 158 P. 3d 1183 ( 2007) ( citing 73 Wn. App. 293, 313, 869 P.2d 404, review denied, 124 Wn.2d 163 Wn.2d 1013 ( 2008). request for attorney fees. 23 Therefore, we do not consider Woods' s No. 44295 -7 -II We affirm the superior court' s order excluding Woods' s late -filed expert report, granting the DOC' s motion for summary judgment, and dismissing all of Woods' claims. We also deny Woods' s request for attorney fees. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. We concur: 24

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