Margarita M. De Sugiyama, V State Of Wa Dot ( 2015 )

F ILEC
COURT OF APPEALS
DIVISION II
2015 FE s10 AM 3: 56
IN THE COURT OF APPEALS OF THE STATE OF WASHING . 0
ON
DIVISION II BY
MARGARITA MENDOZA de SUGIYAMA, No. 45087 -9 -II
Appellant.
v.
WASHINGTON STATE DEPARTMENT OF UNPUBLISHED OPINION
TRANSPORTATION,
Respondent.
LEE, J. — Margarita Mendoza de Sugiyama appeals the trial court' s order granting
summary judgment in favor of the Department of Transportation ( Department), arguing there are
genuine issues of material fact as to her whistleblower retaliation claim, her hostile work
environment claim, her discrimination claim, and her retaliation claim under the Washington Law
Against Discrimination (WLAD). She also argues that the trial court erred by striking portions of
her declaration and denying her motion to compel discovery.
We hold that the trial court properly granted summary judgment as to all of Mendoza de
Sugiyama' s claims. We also hold that the trial court did not abuse its discretion by striking portions
of her declaration, and the trial court did not manifestly abuse its discretion in denying the motion
to compel. Accordingly, we affirm.
FACTS
Mendoza de Sugiyama is a Mexican -American woman who was terminated from her
position as the Department' s diversity programs administrator. In June 2003, she was appointed
as the diversity programs administrator for the Department' s Office of Equal Opportunity ( OED).
No. 45087 -9 -I1
At the time, OEO was responsible for both internal and external civil rights programs. The internal
civil rights branch ( ICRB) addressed civil rights issues regarding state employees while the
external civil rights branch addressed civil rights issues with state contractors. Mendoza de
Sugiyama was responsible for supervising the ICRB and reported to OEO Director Brenda
Nnambi.
In April 2007, Shawn Murinko began working for OEO as the Americans with Disabilities
Act /affirmative action coordinator. Murinko has cerebral palsy and is confined to a wheelchair.
Sometime in 2009, there was a fire drill in the building where Mendoza de Sugiyama, Nnambi,
and Murinko worked. During the fire drill, Murinko was told to wait by the stairs, but no one
came to help him evacuate the building. As a result, Murinko' s office was moved from OEO
offices on the second floor to a human resources ( HR) office on the first floor.
After the office relocation, Murinko began to feel as though Mendoza de Sugiyama was
against him. He noted that she referred to him as HR' s " golden boy." Clerk' s Papers
retaliating
CP) at 592. He also alleged that she was micromanaging him. On one occasion, she saw him
eating lunch in the second floor conference room and told him he was not supposed to be there.
She also made a joke about the size of Murinko' s head. Murinko believed that Mendoza de
Sugiyama' s hostility toward HR was being directed toward him because his office was relocated
to HR' s floor of the building. Murinko complained about Mendoza de Sugiyama' s behavior to the
Department' s chief of staff, Steven Reinmuth. In February 2010, Murinko transferred to a new
position within HR, handling external disability matters.
In December 2009, Mendoza de Sugiyama learned that Reinmuth was considering
that the ICRB be HR. Nnambi and Mendoza de
reorganizing OEO so would moved within
No. 45087 -9 -II
Sugiyama objected to the proposed reorganization. In January 2010, Reinmuth notified Nnambi
and HR Director Kermit Wooden that no final decision on the reorganization would be made until
December 31, 2010.
On February 2, 2010, Mendoza de Sugiyama wrote a letter to the governor. In her letter,
Mendoza de Sugiyama objected to the proposed reorganization of OEO and ICRB, stating that it
violated the Code of Federal Regulations from the Federal Highway Administration. Mendoza de
Sugiyama also stated that she was " personally and professionally offended and disappointed" that
ICRB would be transferred to HR because Wooden, and his supervisor, Assistant Secretary Bill
Ford, had a history of sexual relationships with subordinates and sexual harassment. CP at 652.
She also accused Wooden of being openly hostile toward her. In addition to her objections to the
reorganization of OEO, Mendoza de Sugiyama complained about Murinko' s move to the position
in HR and the accusations Murinko made about her treatment of him. Ultimately, Mendoza de
Sugiyama accused Reinmuth, Wooden, and Murinko of conspiring to undermine her personal .
integrity and professionalism.
The governor' s chief of staff, Jay Manning, responded to Mendoza de Sugiyama' s letter
on February 26, 2010. In the letter, Manning slated the governor' s counsel had reviewed the
federal regulations and determined that there was no legal impediment to moving the ICRB to HR,
but that he would advise Secretary of Transportation Paula Hammond, to discuss any move with
the Federal Highway Administration. Manning also stated that the letter had been discussed with
Secretary Hammond, and they decided to begin an independent investigation into the accusations
made by Mendoza de Sugiyama and the complaints made by Murinko.
No. 45087 -9 -II
After receiving Chief of Staff Manning' s response to her letter, Mendoza de Sugiyama sent
a letter to the Federal Highway Administration. Mendoza de Sugiyama reiterated her concerns
about moving the ICRB to HR. As evidence of her concern, she pointed out that Reinmuth was
attempting to place unqualified people ( Murinko) in charge of civil rights issues and was
obstructing OED' s ability to report to Secretary Hammond. When Mendoza de Sugiyama was
notified that Federal Highway Administration received her complaint, she responded with an
additional e -mail containing documents supporting her assertion that Murinko was unqualified for
his position. She included confidential documents such as resumes, scores from interview panels,
and draft documents that contained Murinko' s edits and comments.
In March 2010, Claire Cordon was retained to perform an independent investigation into
Mendoza de Sugiyama' s and Murinko' s complaints. To ensure the independence of the
investigation, Cordon was retained by, and reported to, the Department of Personnel, rather than
the Transportation Department. In the course of her investigation, Cordon interviewed 47
witnesses and reviewed several hundred pages of documents. Cordon performed three interviews
with Mendoza de Sugiyama, exchanged numerous phone calls and e -mails with Mendoza de
Sugiyama, reviewed 44 e -mails with 53 accompanying attachments from Mendoza de Sugiyama,
and interviewed 28 of Mendoza de Sugiyama' s 31 identified witnesses.
Cordon completed her report on July 21, 2010. Cordon determined that Mendoza de
Sugiyama' s claim that Wooden discriminated against her based on sex was unsubstantiated.
Cordon noted that some of Wooden' s conduct was unprofessional and inappropriate, but that there
was no evidence on discriminatory intent. Cordon also noted that both female and male witnesses
accused Wooden of bullying or abusive language or behavior. Cordon concluded that there was
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No. 45087 -9 -II
no evidence to support Mendoza de Sugiyama' s assertion that Reinmuth, Wooden, and Murinko
were conspiring against her.
Cordon did, however, conclude that Murinko' s complaints regarding retaliation from
Mendoza de Sugiyama were substantiated. Specifically, she determined that evidence supported
Murinko' s contention that Mendoza de Sugiyama treated him differently by subjecting him to
greater scrutiny after his move to the first floor. She also determined that Mendoza de Sugiyama
engaged in retaliatory activity by criticizing Murinko' s qualifications and position to outside
the governor, general, and Federal Highway Administration. Cordon
parties such as attorney
observed that Mendoza de Sugiyama' s current actions demonstrated a loss of objectivity and
perspective by Mendoza de Sugiyama and a lack of oversight by Nnambi.
Cordon also addressed Mendoza de Sugiyama' s allegations of two instances of sexual
misconduct by Wooden and Ford against other employees. In a 2005 complaint against Ford, the
complainant alleged that she lost her temporary position because she refused to engage in group
sex with Ford. Ford and the complainant had been in a consensual relationship prior to the
complainant coming to work at the Department. Cordon' s report did not identify any action taken
by the Department in response to the allegations against Ford. Also in 2005, a complainant alleged
that Wooden had sexually harassed her; however, Wooden claimed that the complainant was
actually the person who initiated the sexual contact. There were three additional alleged " victims"
that Mendoza de Sugiyama identified based on rumors: one alleged victim denied the rumor, one
alleged victim stated that Wooden once asked her to show him the cool places in town, and one
alleged victim admitted to starting a consensual committed relationship with Wooden after she left
the Department.
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No. 45087 -9 -II
On August 13, 2010, Secretary Hammond issued a predisciplinary letter to Mendoza de
Sugiyama. The letter outlined the charges against Mendoza de Sugiyama and specifically stated:
The charges are based solely upon acts considered to be misconduct and breach of your duties as
a manager in WSDOT, and are not based upon the complaints you have made about agency actions
you consider to be improper." CP at 1402. The charges were generally related to Mendoza de
Sugiyama' s actions toward Murinko and conduct during the investigation.
On August 27, Mendoza de Sugiyama provided a written response to Secretary
Hammond' s predisciplinary letter. Mendoza de Sugiyama disputed all of the charges articulated
in Hammond' s letter. Mendoza de Sugiyama also stated that she believed the investigation and
allegations in the predisciplinary letter were because she was " a Hispanic women over 40" and she
reported her concerns to the governor. CP at 745.
On September 10, Mendoza de Sugiyama was notified of her termination effective
September 25. The termination notice listed three specific reasons for the termination;
1. You responded inappropriately to a disability reasonable accommodation
proposal, and in spite of your expertise, failed to direct others to appropriate
considerations.
2. You subjected your subordinate to unprofessional comments and heightened
scrutiny, following consideration of his relocation to another floor. The relocation
had been initiated in response to workplace safety and disability accommodation
concerns.
3. You publicly criticized Mr. Murinko in written documents, even though you
were on notice of a complaint of retaliation.
CP at 697, 699, 701. In explaining the level of discipline to be imposed, Secretary Hammond
explained:
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No. 45087 -9 -II
Your actions of sending critical letters and confidential information to outside
parties cannot be tolerated. You possess the expertise to know how to navigate a
complaint and work toward a resolution, yet you intentionally worked to repeatedly
undermine Mr. Murinko' s reputation, subjected him to increased scrutiny after a
reasonable accommodation request was made, and released documents that were
confidential —all without any recognition that he was a protected complainant. In
taking these actions, you personally created risk for the agency, and your actions
could be viewed as efforts to undermine Mr. Murinko' s reputation with people with
whom and for whom he works.
I understand you felt a need to address the possible transition of OED' s Internal
Civil Rights Branch to Human Resources with the Governor' s office, but I cannot
find any credible reason why you publicly complained about Mr. Murinko in these
communications.... I find the timeline of events and information you shared about
him disturbing. Your actions were repeated and malicious, and appear to be a
calculated campaign to attack individuals in the agency. What has occurred is not
a single incident that could be explained as a lack ofjudgment or a mistake.
CP at 704 -05 ( emphasis omitted). Based on Mendoza de Sugiyama' s actions, Secretary Hammond
determined the only appropriate disciplinary action would be termination.
On September 24, Mendoza de Sugiyama submitted an online whistleblower complaint to
the Washington State Auditor' s Office. Her complaint alleged that the Department spent $ 100, 000
remodeling the HR area and created a " risk to legal and civil rights of members of the public with
disabilities by placing an unqualified person as the lead for all WSDOT external ADA matters."
CP at 851. The auditor' s office declined to open a whistleblower investigation into Mendoza de
Sugiyama' s complaint.
After Cordon' s .report, Secretary Hammond and Reinmuth also took action to address the
clear pattern of abusive behavior and unprofessional conduct by Mr. Wooden toward people
regardless of their race, gender, or age." CP at 1016. But even after Secretary Hammond and
Reinmuth took corrective action, three managers in HR brought Reinmuth a two page list of
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No. 45087 -9 -II
complaints regarding Wooden' s generally unprofessional management. As a result, Secretary
Hammond terminated Wooden' s employment.
On July 26, 2011, Mendoza de Sugiyama filed an amended complaint) in Thurston County
Superior Court against the Department. In her complaint, she alleged claims for whistleblower
retaliation, race and gender discrimination, hostile work environment, and retaliation for opposing
discrimination.
During discovery, the Department filed a motion for a protective order to limit Mendoza.
de Sugiyama' s discovery request for e- mails and other electronically stored information. The same
day, Mendoza de Sugiyama filed a motion to compel the Department to disclose the same e- mails
and electronically stored information. Mendoza de Sugiyama had requested that the Department
disclose all e -mails exchanged between 12 identified individuals. The Department identified
174, 754 e -mails that were exchanged between the 12 identified individuals. The Department
presented evidence that it would take approximately 62 days and cost approximately $ 1, 000, 000
to review all the e -mails for responsiveness and privilege. Mendoza de Sugiyama responded that
the Department had already compiled all the e -mails and simply had to electronically transfer them;
therefore, the request was not overly broad or unduly burdensome.
On May 18, 2012, the trial court denied Mendoza de Sugiyama' s motion to compel stating:
With regard to plaintiff' s motion to compel discovery of electronically
stored information (``BSI "), including but not limited to e[- ] mails, RFP Nos. 27 -42,
the Court finds that plaintiff's requests are overly broad and unduly burdensome.
The request would require WSDOT to produce 175, 000 e[- ] mails, which is too
many. Therefore, the request is denied.
This ruling is not intended to preclude
plaintiff from seeking discovery of ESI, either through a collaborative effort with
WSDOT to develop and employ key -word search strategies that are tailored to the
1 The original complaint was filed on June 22, 2011.
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No. 45087 -9 -II
issues in this case, or through discovery requests that are tailored to the issues in
the case and crafted in such a way that WSDOT can reasonably fashion a search
strategy designed to gather the ESI plaintiff is seeking, in the absence of a
collaborative effort.
CP at 397 -98.
On October 19, the Department filed a .motion for summary judgment. Both parties
submitted extensive affidavits, depositions, and exhibits. On June 7, 2013, the trial court granted
the Department' s motion for summary judgment and dismissed Mendoza de Sugiyama' s claims
with prejudice. Mendoza de Sugiyama appeals.
ANALYSIS
A. DISCOVERY AND EVIDENTIARY ISSUES
Mendoza de Sugiyama argues that the trial court erred by ( 1) denying her motion to compel
discovery and ( 2) striking portions of her declaration. As a result, she argues, the trial court
considered an incomplete record on summary judgment. The trial court did not abuse its broad
discretion to manage discovery, and any error the trial court may have made in striking portions
of Mendoza de Sugiyama' s declaration is harmless.
1. Order Denying Motion to Compel Discovery
Mendoza de Sugiyama argues that the trial court erred by denying her motion to compel
the Department to provide all 174,000 e -mails between the people identified in her request for
production. Specifically, she asserts that the request was not overly broad or burdensome because
the e -mails had already been identified and could easily be transferred to an external hard drive.
Mendoza de Sugiyama' s assertion misses the salient point in both the Department' s argument and
the trial court' s decision —that the Department could not determine whether the 174, 000 e -mails
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No. 45087 -9 -II
and attached documents were responsive to her request without reviewing each individually.
Accordingly, the trial court did not manifestly abuse its discretion by denying Mendoza de
Sugiyama' s motion to compel.'
The decision to grant or deny a motion to compel is within the discretion of the trial court,
and we will not reverse the decision absent an abuse of discretion. Clarke v. Office ofthe Attorney
General, 133 Wn. App. 767, 777, 138 P.3d 144 ( 2006), review denied, 160 Wash. 2d 1006 ( 2007).
The court abuses its discretion when its decision is based on untenable grounds or reasons. Clarke,
133 Wn. App. at 777. CR 26(b)( 1) allows the trial court to limit the scope of discovery if "the
discovery is unduly burdensome or expensive." And, the trial court may grant a protective order
to protect a party or person from annoyance, embarrassment, oppression, or undue burden or
expense." CR 26( c).
Here, the trial court recognized that Mendoza de Sugiyama' s request would require the
Department to individually review over 174, 000 e -mails and corresponding attachments. The
Department presented evidence establishing that this review could cost approximately $ 1, 000, 000.
Contrary to Mendoza de Sugiyama' s assertion, compliance with the discovery request was not as
2 Both parties note that Mendoza de Sugiyama has a pending public records request which we
recently addressed and resolved in Mendoza de. Sugiyama' s favor. Wash. State Dep 't of Transp.
v. Mendoza de Sugiyama, 182 Wash. App. 588, 599 -600, 330 P.3d 209 (2014). Neither party appears
to argue that the Public Records Act (PRA) request has any bearing on the propriety of the trial
court' s ruling on the motion to compel, and with good reason. The scope of the PRA, ch. 42. 56
RCW is significantly broader than the rules governing discovery in a civil case. The exceptions
and exemptions under the PRA are narrowly construed, and a public records request is not limited
by considerations such as relevance or breadth. See RCW 42. 56. 080. Because of the significant
differences between the PRA and the civil discovery rules, Mendoza de Sugiyama' s ability to
obtain the documents under the PRA has no bearing on whether the trial court manifestly abused
its discretion by denying Mendoza de Sugiyama' s motion to compel discovery based on the
determination Mendoza de Sugiyama' s request was overly broad and burdensome.
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No. 45087 -9 -II
simple as transferring the e -mails to an external hard drive. And, the trial court' s order did not
preclude Mendoza de Sugiyama from ever obtaining the e- mails. Rather, the trial court' s order
required Mendoza de Sugiyama to take reasonable steps to help narrow the scope of her discovery
request. The trial court did not abuse its discretion in denying Mendoza de Sugiyama' s motion to
compel discovery.
2. Order Striking Portions of Mendoza de Sugiyama' s Declaration
Mendoza de Sugiyama argues that the trial court erred by striking entire portions of her
declaration. The trial court struck a total of 20 paragraphs from Mendoza de Sugiyama' s
declaration because " they lack foundation, offer only opinion or legal conclusions, or are hearsay."
CP at 1534. However, Mendoza de Sugiyama limits her argument to " paragraphs containing her
letter to the governor as an exhibit (par. 20), her letter to the governor' s chief of staff (par. 32), and
her letter to the [ Federal Highway Administration] ( par. 30)." Br. of Appellant at 47. Mendoza
de Sugiyama argues that the trial court erred because her letters are properly admitted as exhibits.
Because Mendoza de Sugiyama' s letters to the governor, the governor' s chief of staff, and the
Federal Highway Administration were already properly part of the record before the trial court on
summary judgment, any error resulting from the trial court striking the paragraphs in Mendoza de
Sugiyama' s declaration containing these documents is harmless. See Milligan v. Thompson, 110
Wash. App. 628, 634 -35, 42 P.3d 418 ( 2002).
B. SUMMARY JUDGMENT
We review a trial court' s order on summary judgment de novo. Vallandigham v. Clover
ParkSch. Dist. No. 400, 154 Wash. 2d 16, 26, 109 P.3d 805 ( 2005); Domingo v. Boeing Emps' Credit
Union, 124 Wn. App. 71, 78, 98 P.3d 1222 ( 2004). Therefore, we must determine whether, based
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No. 45087 -9 -II
on the record before the trial court on summary judgment, Mendoza de Sugiyama has demonstrated
that there is a genuine issue of material fact that precludes summary judgment. We conclude that
she has not and, thus, affirm the trial court' s order granting the Department' s motion for summary
judgment.
A trial court' s order granting summary judgment is proper when the pleadings and
affidavits before the court show that there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. CrR 56( c). "`` [ A] complete failure of proof concerning
an essential element ofthe nonmoving party' s case necessarily renders all other facts immaterial.'"
Young v. Key Pharm., Inc., 112 Wash. 2d 216, 225, 770 P.2d 182 ( 1989) ( quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322 -23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 ( 1986)).
All of Mendoza de Sugiyama' s claims require her to establish discriminatory or retaliatory
intent. See RCW 49. 60. 030( 1), . 210( 1), . 210( 2). A plaintiff may establish a prima facie case of
discrimination by either offering direct evidence of an employer' s discriminatory intent, or by
satisfying the McDonnell Douglas3 burden -shifting test that gives rise to an inference of
discrimination. Kastanis v. Educ. Emps. Credit Union, 122 Wash. 2d 483, 491, 859 P.2d 26, 865
P.2d 507 ( 1993). Here, Mendoza de Sugiyama does not argue that there is direct evidence of
4
discriminatory intent. Therefore, we apply the McDonnell Douglas burden shifting test to
3 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 ( 1973).
4 An employer' s discriminatory remarks are generally considered direct evidence of discriminatory
intent. See Johnson v. 113 Wash. App. 858, 862 -63, 56 P.3d 567 ( 2002).
Express Rent & Own, Inc.,
Here, there is nothing in the record demonstrating that any discriminatory remarks were made to,
or about, Mexican- Americans or women in the Department.
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No. 45087 -9 -II
determine whether Mendoza de Sugiyama presented evidence supporting an inference of
discriminatory intent that created a genuine issue of material fact.
Under the McDonnell Douglas burden shifting test, the plaintiff must first establish a prima
facie case of discrimination. Hegwine v. Longview Fibre Co., 162 Wash. 2d 340, 354, 172 P.3d 688
2007) ( citing Hill v. BCTI Income Fund -I, 144 Wash. 2d 172, 180, 23 P.3d 440 ( 2001)). If the
plaintiff establishes a prima facie case under McDonnell Douglas, then a legally mandatory,
rebuttable presumption of discrimination temporarily takes hold, and the evidentiary burden shifts
to the defendant to produce admissible evidence of a legitimate, nondiscriminatory explanation for
the adverse employment action. Hegwine, 162 Wash. 2d at 354. If the employer meets this
intermediate production burden, the presumption established by having the prima facie evidence
is rebutted and the presumption simply drops out of the picture. Hegwine, 162 Wash. 2d at 354.
Once the presumption is removed, the plaintiff is then afforded a fair opportunity to show a
defendant' s stated reason for the adverse action was in fact pretext. Hegwine, 162 Wash. 2d at 354.
If a plaintiff cannot present evidence that the defendant' s reasons for the adverse employment
action are untrue or pretext, summary judgment is proper. Domingo, 124 Wash. App. at 78.5
5 We recognize that our Supreme Court recently clarified the different ways to prove that the
employers' legitimate, nondiscriminatory reason for the adverse employment action is a pretext
for discrimination. Scrivener v. Clark College, 181 Wash. 2d 439, 441 -42, 334 P.3d 541 ( 2014). Our
Supreme Court stated that there are five ways for a plaintiff to demonstrate pretext, rather than the
the Court Appeals. Scrivener, 181 Wash. 2d at 447. The
four ways previously articulated by of
plaintiff can demonstrate pretext by showing the allegedly legitimate basis for the employment
action ( 1) had no basis in fact, (2) was not really the motivating factor for the decision, (3) was not
temporally connected to the adverse employment action, ( 4) was not a motivating factor in
employment decisions for similarly situated employees, or that ( 5) discrimination was a
Scrivener, 181 Wash. 2d at 447 -48.
substantially motivating factor in the
employment action.
However, Mendoza de Sugiyama baldly asserts that she has rebutted the Department' s " pretextual
reason," and she makes no attempt to demonstrate that the Department' s legitimate,
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No. 45087 -9 -II
Here, Mendoza de Sugiyama fails to establish a genuine issue of material fact under the
McDonnell -Douglas burden -shifting test. Therefore, the trial court' s order granting the
Department' s motion for summary judgment was proper.
1. Whistleblower Retaliation Claim
RCW 42. 40. 050 and RCW 49. 60. 210( 2) prohibit retaliation against a whistleblower. To
establish a prima facie case of retaliation, an employee must show that ( 1) she engaged in a
protected activity ( filing a whistleblower complaint), ( 2) the employer took an adverse
statutorily
employment action, and ( 3) the adverse action was caused by the employee' s activity. Milligan,
110 Wash. App. at 638.6 The Department argues that Mendoza de Sugiyama cannot establish a
prima facie case of whistleblower retaliation because ( 1) she filed a whistleblower complaint after
she was terminated from her employment and ( 2) the letters to the governor and the Federal
Highway Administration are not whistleblower complaints for the purposes of establishing a cause
of action under RCW 42.40. 050 and RCW 49. 60. 210( 2). The Department is correct.
nondiscriminatory reasons for her termination were a pretext for discrimination. Reply Br. of
Appellant at 3, Br. of Appellant at 30. Therefore, our Supreme Court' s opinion in Scrivener does
not affect our analysis here.
6 Although Milligan addresses the standard for establishing a prima facie case for retaliation for
opposing discriminatory practices, the standard is equally applicable to whistleblower retaliation
because a whistleblower retaliation claim is derived from the same statute, RCW 49. 60.210. See
RCW 42. 40. 050( 1)( Any person who is a whistleblower, as defined in RCW 42.40.020, and
a) ( "
who has been subjected to workplace reprisal or retaliatory action is presumed to have established
a cause of action for the remedies provided under chapter 49. 60 RCW. ").
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No. 45087 -9 -II
a. Mendoza de Sugiyama' s September 24, 2010 Complaint to the Auditor' s Office
Secretary Hammond sent Mendoza de Sugiyama " official notification of [her] termination"
on September 10, 2010. CP at 694. Mendoza de Sugiyama filed her whistleblower' s complaint
with the State Auditor' s Office on September 24, 2010. Because Mendoza de Sugiyama filed her
whistleblower complaint with the auditor' s office after she was notified of her termination, her
termination could not be caused by her whistleblower complaint.
However, Mendoza de Sugiyama argues that her whistleblower complaint was filed before
her termination because Mendoza de Sugiyama' s last day of employment was September 24, the
filed the whistleblower complaint with the auditor' s office. Even if this were an
same day she
accurate determination of the date on which Mendoza de Sugiyama was terminated, it does not
establish that Mendoza de Sugiyama was terminated because of the whistleblower complaint.
Regardless of what date. Mendoza de Sugiyama was " terminated," the decision to terminate her
employment was made and communicated to her well before she filed a whistleblower complaint
with the auditor' s office. Mendoza de Sugiyama cannot establish a prima facie case of retaliation
based on the whistleblower complaint she filed with the auditor' s office.
b. Mendoza de Sugiyama' s Letters to the Governor and the Federal Highway
Administration
Mendoza de Sugiyama also argues that she meets the definition of a whistleblower based
on the letters she wrote to the governor and the Federal Highway Administration. We disagree.
Under RCW 42. 40. 020( 10)( a)( i), a whistleblower is "[ a] n employee who in good faith
reports alleged improper governmental action to the auditor or other public official, as defined in
subsection ( 7) of this section." RCW 42. 40. 020( 7) defines " public official" as
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No. 45087 -9 -II
the attorney general' s designee or designees; the director, or equivalent thereof in
the agency where the employee works; an appropriate number of individuals
designated to receive whistleblower reports by the head of each agency; or the
executive ethics board.
Improper government action includes, but is not limited to, gross waste of public funds, violation
of federal or state law, or gross mismanagement. RCW 42. 40. 020( 6)( a). However, improper
governmental action does not include issues related to personnel actions such as promotions,
demotions, or claims of discriminatory behavior. RCW 42. 40. 020( 6)( b). Based on the definitions
in RCW 42. 40. 020, Mendoza de Sugiyama cannot be considered a whistleblower based on her
letters to the governor and the Federal Highway Administration.
Mendoza de Sugiyama' s alleged whistleblower complaints were not sent to the correct
person designated in the whistleblower statute. The statute clearly states to whom a whistleblower
complaint can be made. RCW 42.40. 020( 7) does not include the governor or employees of a
federal agency. We will not look beyond the plain language of the statute and read words into a
statute that are not there. C.J.C. v. Corp. of Catholic Bishop of Yakima, 138 Wash. 2d 699, 708, 985
P.2d 262 ( 1999). Therefore, Mendoza de Sugiyama' s letters to the governor and the Federal
Highway Administration are not whistleblower complaints under the statute.
Similarly, Mendoza de Sugiyama' s claim that a letter becomes a whistleblower complaint
if a designated person ultimately receives it or learns of it fails. The statute explicitly requires that
a whistleblower complaint be reported to the state auditor or a designated public official.
Therefore, Mendoza de Sugiyama' s letters are not transformed into whistleblower complaints
simply because Secretary Hammond ultimately learned of them.
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Moreover, even if Mendoza de Sugiyama' s complaints were reported to a public official
as defined in RCW 42. 40. 020( 7), Mendoza de Sugiyama' s complaints about Murinko' s position
and qualifications are personnel issues and are clearly outside the scope of the whistleblower
statute. RCW 42. 40. 020( 6)( b). Secretary Hammond repeatedly stated that, to the extent Mendoza
de Sugiyama' s communications to outside agencies played a factor in her termination, it was due
to Mendoza de Sugiyama' s inappropriate criticisms of Murinko knowing that there was a pending
retaliation complaint and her improper disclosures of Murinko' s confidential interview and
application materials. Because the activities that resulted in Mendoza de Sugiyama' s termination
were not protected activities, she cannot make a prima facie case for whistleblower retaliation, and
the trial court properly granted the Department' s motion for summary judgment.
2. WLAD Claim: Hostile Work Environment
To support a claim of a hostile work environment, Mendoza de Sugiyama is required to
make a prima facie case that the actions ( 1) were unwelcome, ( 2) were because of the plaintiff' s
status as a member of a protected class, ( 3) affected the terms or conditions of employment, and
4) could be imputed to the employer. Glasgow v. Georgia -Pac. Corp., 103 Wash. 2d 401, 406 -08,
693 P.2d 708 ( 1985). " Casual, isolated or trivial manifestations of a discriminatory environment
do not affect the terms or conditions of employment to a sufficiently significant degree to violate
the law." Glasgow, 103 Wash. 2d at 406.
Here, Mendoza de Sugiyama cannot establish that she was subject to a hostile work
environment due to either her race or gender. She alleges that she was subjected to a hostile work
environment because of Wooden' s hostile behavior. But, the evidence establishes that Wooden' s
behavior was universally unprofessional and hostile. Although Mendoza de Sugiyama may be
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able to demonstrate that Wooden' s behavior was hostile toward her, she cannot demonstrate that
Wooden' s behavior was based on her race or her gender. Accordingly, Mendoza de Sugiyama
cannot establish a prima facie claim of a hostile work environment.
Mendoza de Sugiyama also alleges that Reinmuth created a hostile work environment. She
states that Reinmuth required Nnambi to attend meetings with her and that Reinmuth repeatedly
criticized her. She contends that Reinmuth sought to move the ICRB to HR despite Mendoza de
Sugiyama' s complaints about Wooden and that Reinmuth interjected his opinions about Mendoza
de Sugiyama to Cordon during her investigation. These claims fail to show that Reinmuth created
a hostile work environment.
First, ICRB' s potential move to HR is irrelevant. Reinmuth was clear that no final decision
would be made until December 2010, well after Mendoza de Sugiyama was terminated. Also,
Mendoza de Sugiyama fails to explain how this potential move created a hostile work environment
based on her race or gender. Second, Reinmuth was interviewed for Cordon' s report because of
his position in the Department and because of his involvement with all the parties in this situation.
There is no basis for Mendoza de Sugiyama' s assertion that Reinmuth' s participation in Cordon' s
investigation contributed to creating a hostile work environment based on her race or gender.
Third, even assuming Reinmuth' s decision to have Nnambi attend meetings with Mendoza de
Sugiyama and his criticism of Mendoza de Sugiyama' s work was done with discriminatory intent,
Mendoza de Sugiyama fails to demonstrate how this conduct was so pervasive that it altered the
terms and conditions of her employment. Therefore, Mendoza de Sugiyama has failed to present
a prima facie case that Reinmuth created a hostile work environment. Because Mendoza de
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Sugiyama has failed to demonstrate a prima facie case establishing her hostile work environment
claim, the trial court properly granted the Department' s motion for summary judgment.
3. WLAD Claim: Disparate Treatment
To establish a prima facie case of disparate treatment, Mendoza de Sugiyama must show
that she ( 1) belongs to a protected class; ( 2) was treated less favorably in the terms and conditions
of his employment than a similarly situated, nonprotected employee; and ( 3) the nonprotected
comparator" was doing substantially the same work. Domingo, 124 Wn. App. at 81. It is
undisputed that as a Hispanic woman, Mendoza de Sugiyama belongs to a protected class.
However, Mendoza de Sugiyama cannot identify comparators that support her claim of disparate
treatment.
a. During Employment
Mendoza de Sugiyama claims that both Wooden and Reinmuth treated her differently
during her employment based on her race and gender. She alleges that Wooden discriminated
against her because Wooden " spoke to her in a demeaning way, cancelled meetings with her and,
when he did attend meetings, he refused to interact with her." Br. of Appellant at 41. In her brief,
Mendoza de Sugiyama states that other women complained of similar behavior, but to establish a
prima facie case of disparate treatment, Mendoza de Sugiyama must demonstrate that Wooden
behaved differently toward a nonprotected employee. Domingo, 124 Wn. App. at 81. Mendoza
de Sugiyama has not demonstrated that Wooden regularly spoke respectfully to nonprotected
employees or never cancelled meetings with nonprotected employees. In fact, the record
establishes that Wooden treated everyone poorly and with disrespect. Mendoza de Sugiyama has
not established a prima facie case of disparate treatment based on Wooden' s treatment of her.
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Mendoza de Sugiyama also claims that Reinmuth discriminated against her based on her
race and gender by treating her differently. However, as with Wooden, she has failed to identify
appropriate comparators to support her disparate treatment claim. She alleges that Reinmuth
treated her differently because nonprotected employees had direct access to him through an open -
door policy, but Mendoza de Sugiyama has not'alleged that she attempted to take advantage of his
open -door policy or that she tried to exercise the same type of direct access as others but was
denied. Therefore, whatever access nonprotected employees may have had to Reinmuth has no
bearing on Mendoza de Sugiyama' s disparate treatment claim against Reinmuth.
Mendoza de Sugiyama also alleges that Reinmuth was quick to criticize her in response to
a Caucasian male' s ( Murinko) complaint, but failed to act on her complaint about Wooden. She
does not specify what complaint or complaints Reinmuth failed to act on. When the Department
was informed of both Murinko' s complaint against her and her complaint against Wooden, the
same action was taken —an independent investigation. Therefore, there is no evidence supporting
a claim of disparate treatment.
b. Termination
Mendoza de Sugiyama asserts that " her race and/ or gender was a substantial factor in her
termination." Br. of Appellant at 43. Mendoza de Sugiyama' s claim fails because she cannot
present a prima facie case of disparate treatment in regard to her termination.
Mendoza de Sugiyama attempts to use Wooden and Assistant Secretary Bill Ford as
comparators because they had been accused of sexual harassment in the past but were not
terminated. She argues that, in contrast, she was accused of retaliation and then terminated. But
Wooden' s and Ford' s prior cases are not comparable, primarily because Reinmuth was not
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responsible for the action that was or was not taken against Wooden. and Ford. The sexual
harassment cases against Wooden and Ford occurred five years earlier and Reinmuth was not chief
of staff at the time.? Therefore, how Wooden' s and Ford' s cases were handled cannot establish
Reinmuth treated Mendoza de Sugiyama differently.
Mendoza de Sugiyama also attempts to designate Nnambi and Colleen Jollie as
comparators because they were both women of color who had their authority allegedly reduced or
undermined by Reinmuth. But a comparator must be a nonprotected person. As Nnambi and Jollie
are both women of color, they fall within the same protected class as Mendoza de Sugiyama.
Therefore, Nnambi and Jollie are not appropriate comparators for a disparate treatment claim.
Mendoza de Sugiyama cannot make a prima facie showing of disparate treatment because
she has failed to identify how she was treated differently than a nonprotected employee. Mendoza
de Sugiyama fails to establish a prima facie case of disparate treatment either during her
employment or as a substantial factor in her termination. Therefore, Mendoza de Sugiyama has
failed to establish a genuine issue of material fact under the McDonnell Douglas burden shifting
test. The trial court properly granted the Department' s motion for summary judgment on Mendoza
de Sugiyama' s disparate treatment claim.
4. WLAD Claim: Retaliation for Opposing Discrimination Claim
To establish a prima facie case of retaliation, the employee must show that ( 1) he or she
engaged in a statutorily protected activity, ( 2) the employer to adverse employment action, and (3)
7 Hammond was chief of staff at the time and, in fact, did recommend Wooden' s termination.
However, the then Secretary of Transportation, Mr. MacDonald, decided that no action would be
taken.
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there was a causal link between the employee' s activity and the employer' s adverse action. Estevez
v. Faculty Club of the Univ. of Wash., 129 Wn. App. 774, 797, 120 P.3d 579 ( 2005). Mendoza de
Sugiyama alleges that her termination was in retaliation for her complaints about " her own gender
and race discrimination by Reinmuth and Wooden." Br. of Appellant at 44. Mendoza de
Sugiyama asserts that she has presented a prima facie case because she was terminated after she
complained. Even assuming that temporal proximity is sufficient to establish a prima facie case
of retaliation, the Department has presented a legitimate, nondiscriminatory reason for Mendoza
de Sugiyama' s termination and Mendoza de Sugiyama makes only conclusory, unsupported
assertions that the Department' s legitimate reason for her termination is pretext.
Here, Secretary Hammond based her decision to terminate Mendoza de Sugiyama on
Mendoza de Sugiyama' s actions toward Murinko and her disclosure of confidential interview and
employment documents to other agencies. Mendoza de Sugiyama argues that she can demonstrate
pretext because she stated she did not retaliate against Murinko. But, it is undisputed that she
improperly disclosed confidential interview and employment documents to the Federal Highway
Administration. To the extent that Mendoza de Sugiyama asserts that her termination based on
her own improper actions toward Murinko and her improper disclosure of confidential documents
was pretext for retaliation, she has not provided any evidence or argument supporting that
argument. Thus, Mendoza de Sugiyama' s claim for retaliation for opposing discrimination does
not establish a genuine issue of material fact under the McDonnell -Douglas burden shifting test.
Accordingly, the trial court properly granted the Department' s motion for summary judgment.
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C. ATTORNEY FEES
Mendoza de Sugiyama also requests attorney fees. RAP 18. 1( a) allows this court to award
attorney fees "[ i]f applicable law grants to a party the right to recover reasonable attorney fees or
expenses." " Argument and citation to authority are required under the rule to advise us of the
appropriate grounds for an award of attorney fees." Bishop of Victoria Corp. Sole v. Corporate
Business Park, LLC, 138 Wn. App. 443, 462, 158 P.3d 1183 ( 2007) ( citing Austin v. U.S. Bank of
Wash., 73 Wash. App. 293, 313, 869 P.2d 404, review denied, 124 Wash. 2d 1015 ( 1994)).
Mendoza de Sugiyama has not cited to any legal authority for awarding her attorney fees
in this case. Therefore, we do not consider Mendoza de Sugiyama' s request for attorney fees.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports but will instead be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
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