Martha Woods v. Department Of Corrections ( 2014 )


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  •                                                                                                              FILED
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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION II
    MARTHA LEAH WOODS,                                                         No. 44295 -7 -II
    Appellant,
    v.
    WASHINGTON STATE DEPARTMENT OF                                      UNPUBLISHED OPINION
    CORRECTIONS, and TERRI VAN AUSDLE
    and "   JOHN DOE        VAN AUSDLE and their
    marital community,
    Respondents.
    LEE, J. —     Martha Leah Woods appeals the superior court' s order granting summary
    judgment in favor     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.
    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    September 12, 2005.           Woods was required to serve a 12 -month trial service period in
    her   new position.          In regard to training for Woods' s new position, the settlement agreement
    stated:
    6.   The training needs for Martha Woods shall be established between the
    supervisor of [Woods' s new position] and Martha Woods no later than September
    30, 2005.       The Department of Corrections recognizes that Martha Woods will
    need   job -specific training.       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    supervised       by    Sharon Dahlstrom.        During the time that Woods was supervised by
    Dahlstrom,       she   primarily did   records   copying   and   filing.   She also studied the records guide
    containing    office procedure       for   handling   records.   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     by    Van Ausdle.        Van Ausdle and Woods discussed and finalized the formal
    training   plan on      December 5, 2005.        The formal training plan assigned specific employees to
    train Woods in         particular areas.    Van Ausdle signed off on Woods' s completion of the formal
    training plan in May 2006.
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    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     well.     Woods'    s   subsequent evaluations       continued       to decline.   After Woods
    completed    the   training    plan,    Van Ausdle      provided       Woods       with   a "   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).             Woods had not yet completed
    3
    No. 44295 -7 -II
    her   one -year   trial   service period       ending September 12, 2006.            During the period of time Woods
    was on medical            leave,    she received   Department     of   Labor    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     February     7, 2007, [ Woods]   returned to the unit while still employed by
    DOC to        collect some personal        belongings....      As [ Woods] prepared to leave the
    building      with    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   an   open        secretary   supervisor position.      Woods had held a secretary supervisor
    position prior     to the settlement       agreement    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.       When DOC did not hear from Woods, Armando Mendoza, the field
    administrator,     sent   Woods     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
    was .discriminatory.       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                 suit against   the DOC     and   Van Ausdle.   Woods' s
    complaint     alleged     the   following    claims     against     the   DOC: (   1)   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.
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    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      to demonstrate that       she   reasonably   cooperated with   the DOC.     Fourth,
    Woods       claims   that   her   separation    from   state service was    retaliatory.    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.   Seattle Police Officer John Doe No. 1,   et al.,   
    145 Wn. App. 292
    , 301, 
    186 P. 3d 1089
     ( 2008) (    citing Brown v. Peoples Mortg. Co., 
    48 Wn. App. 554
    , 559, 
    739 P. 2d 1188
     ( 1987)).     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      hearing.    Under these circumstances, the disclosure of Dr. Namie' s report was
    1
    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
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    No. 44295 -7 -II
    As an initial matter, we note that Woods' s hostile work environment claim arises from
    events    while   she worked      at   the   records   unit ( which was        before September 2006)      Thus, her
    2
    hostile   work environment claim         is barred     by the   statute of   limitations.
    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
    by adopting the analysis in National Railroad Passenger Corp. v.
    acts3
    on   discriminatory
    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 120
    .   The acts must have some relationship to each
    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
    ,               108 -13,    
    122 S. Ct. 2061
    ,            
    153 L. Ed. 2d 106
     ( 2002)).            Hostile work
    environment claims "' are            different in kind from discrete             acts'   and ``[   t]heir very nature involves
    repeated conduct. "'            Antonius, 
    153 Wn.2d at 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
    .
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    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    401   or ( 2) a person was subjected        to harassment for days 1 - 100            and on    day 401. 
    536 U.S. at 118
    .    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
    4
    environment       for the   plaintiff at all   times   when she was employed              there.
    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.        The incident in February 2007 occurred while Woods was on medical leave and
    did    not   have anything to do     with      Woods personally         or   her   work performance.      All Woods stated
    was    that Van Ausdle apparently           bumped into her        while      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.
    b.    Prima Facie Hostile Work Environment Claim
    Woods has failed to present a prima facie case of discrimination arising from a hostile
    work   environment.          To establish a prima facie case of disability discrimination resulting from a
    hostile work environment, Woods must show that ( 1) she was disabled within the meaning of the
    antidiscrimination statute, (          2) the harassment   was unwelcome, ( 3)         the harassment was because of
    her   disability, ( 4) the harassment affected the terms and conditions of her employment, and ( 5)
    that harassment      was      imputable to the     employer.     Robel     v.   Roundup Corp.,    
    148 Wn.2d 35
    , 45, 
    59 P. 3d 611
     ( 2002).           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
    was   mean      to   her in     order   to   support     a    discrimination     claim.    She also has to establish
    discriminatory       intent.    The additional complaints against Van Ausdle establish that Van Ausdle
    treated the majority        of people    in the   records unit        in the   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.
    2.          Disparate Treatment
    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     establish a prima       facie   case   of    disparate treatment, Woods       must show        that   she (   1)
    belongs to      a protected class; (     2) was treated less favorably in the terms and conditions of her
    employment           than   a   similarly    situated,       nonprotected      employee;   and (   3)   the   nonprotected
    13
    No. 44295 -7 -II
    comparator" was         doing   substantially the     same work.    Domingo     v.   Boeing     Emps. ' Credit Union,
    
    124 Wn. App. 71
    , 81, 
    98 P. 3d 1222
     ( 2004).       Woods compares her situation to other records unit
    employees      who     filed   grievances   against    Van Ausdle   and were not        fired.    Woods' s position is
    misguided.       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
    returning from L &I leave.        She has          done   so.   Without
    attempting to        obtain a reversion when                                                     not
    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.
    3.          Failure to Accommodate
    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   job; ( 2)    was qualified to perform the essential functions of the job with or
    without      reasonable       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    measures        that    were       medically necessary to         accommodate       the   disability.    Riehl v.
    Foodmaker, Inc., 
    152 Wn.2d 138
    , 145, 
    94 P. 3d 930
     ( 2004).                        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'     s   disability,    the   employee must give notice          to trigger the   employer' s   duty.   Goodman,
    
    127 Wn.2d at 409
    . And, '      the employee retains a duty to cooperate with the employer' s efforts
    by   explaining the       disability        and   the   employee' s qualifications. "'   Brownfield v. City of Yakima,
    
    178 Wn. App. 850
    , 876, 
    316 P. 3d 520
     ( 2013) (          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      that.    Woods claims that the DOC acted inappropriately because she was
    eventually         able   to   obtain   the   appropriate   documentation later. However, she never informed the
    DOC about the             delay    or   the   reason   for it. We do not agree that an employer should be expected
    to   wait    for   an employee           to   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              duty    to "'   cooperate with the employer' s efforts by explaining the disability
    and   the    employer' s qualifications.'"              Brownfield, 178 Wn. App. at 876 ( quoting Frisino, 160 Wn.
    App.    at   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
    reasonable.         If Woods' s claim is that the reversion request was an accommodation for her mental
    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    available.        Pulcino   v.   Fed. Express    Corp.,   
    141 Wn.2d 629
    , 643, 9.P. 3d 787 ( 2000),                    overruled on other grounds         by McClarty   v.   Totem Elec., 
    157 Wn.2d 214
    ,            
    137 P. 3d 844
     ( 2006).               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              at   644.   And, an employer has no duty to
    16
    No. 44295 -7 -II
    provide    a new supervisor as             a reasonable    accommodation.         Snyder      v.   Med. Serv.   Corp.,   
    145 Wn.2d 233
    , 240 -41, 
    35 P. 3d 1158
     ( 2001).
    Snyder is controlling here.              In Snyder, the employee' s conflicts and encounters with her
    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        employee' s       contention     that   a new   supervisor was         a   reasonable
    accommodation           her   employer       was    required   to   provide,   holding   that " if [the   employee]      can
    perform the job, then she has no disability requiring accommodation simply because she has a
    personality      conflict with    her   supervisor."     Snyder, 
    145 Wn.2d at 241
    .
    Here, Woods may have had mental conditions associated with, or aggravated by, her
    relationship     with   Van Ausdle. But that alone does not require the DOC to reassign her to a new
    position    or    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
    4.      Retaliation
    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   about      bullying   in the   workplace.        RCW
    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   case of retaliation.             Wilmot    v.   Kaiser Aluminum &           Chem.   Corp.,   
    118 Wn.2d 46
    , 68, 
    821 P. 2d 18
     ( 1991).     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)   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).     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   message     boards regarding harassment       and   bullying   in the   workplace.    In
    addition,   Woods'   s separation    from   employment was an adverse employment action.             However,
    Woods failed to establish a causal link between engaging in protected activities and the adverse
    employment     action.       Woods relies exclusively on drawing inferences from the timing of the
    protected   activity   and   the   adverse employment    action —essentially employing flawed post hoc
    hoc5
    ergo propter            reasoning.    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
    until   she was    actually   placed    in the    requested position.        But there is nothing in the CBA that
    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.
    B.        CONTRACT AND TORT CLAIMS
    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         plan.    She also claims that the DOC was negligent in its
    supervision and retention          of   Van Ausdle        as   a supervisor.    The superior court dismissed these
    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    de   novo.   Torgerson v. One Lincoln
    Tower, LLC, 
    166 Wn.2d 510
    , 517, 
    210 P. 3d 318
     ( 2009).                       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.
    CR 56( c).       A material fact is one on which the outcome of the litigation depends in whole or in
    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            most   favorable to the nonmoving party."                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   the moving party."           Atherton, 115 Wn.2d at 516.
    1.          Breach of Contract Claim
    Settlement      agreements are governed             by   general principles of contract       law." Lavigne v.
    Green, 
    106 Wn. App. 12
    , 20, 
    23 P. 3d 515
     ( 2001).           To prove a breach of contract claim, Woods
    has to    show    the     existence of (1)   a contract, ( 2)      a material breach of the terms of the contract, and
    3) damage resulting from the                material   breach.         St. John Med. Ctr.    v.   Dep' t   of Soc. &   Health
    Servs., 
    110 Wn. App. 51
    , 64, 
    38 P. 3d 383
    ,       review     denied, 
    146 Wn.2d 1023
     ( 2002).          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,    collaborative    training   plan   by   September 30, 2005.        It does not even require that
    a   training    plan      be implemented     by   September 30.           Rather, it simply requires that training needs
    21
    No. 44295 -7 -II
    to be   established.     Woods was receiving some form of training and training materials to study
    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   employment.        Therefore, Woods has not shown that, even if DOC
    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.
    2.         Negligent Supervision and Retention Claims
    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     duty "   to   control   an   employee    for the   protection   of a   third   person."   LaPlant v.
    Snohomish      County,     
    162 Wn. App. 476
    ,      479, 
    271 P. 3d 254
     ( 2011).             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
    employment.           Therefore, Woods has not demonstrated that Van Ausdle was acting outside the
    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.     However, Woods has not
    cited   to any legal authority for awarding her attorney fees in this             case.   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 Wn. App. 293
    , 313, 
    869 P.2d 404
    , review denied, 
    124 Wn.2d 1015
     ( 1994)),        review. denied,     
    163 Wn.2d 1013
     ( 2008).        Therefore, we do not consider Woods' s
    request for attorney fees.
    23
    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