Marnie L. Simmons v. Microsoft Corporation ( 2016 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
MARNIE L. SIMMONS, No. 73849-6-1
Appellant,
v. UNPUBLISHED OPINION
MICROSOFT CORPORATION, a
Washington Corporation,
Respondent. FILED: July 5, 2016
Schindler, J. — Mamie L. Simmons appeals summary judgment dismissal of
her lawsuit against Microsoft Corporation alleging age and race discrimination in
violation of the Washington Law Against Discrimination, chapter 49.60 RCW. We
affirm.
FACTS
Mamie L. Simmons was born in October 1969. Her father is of Norwegian and
German descent. Her mother is Hawaiian. Simmons identifies as a Pacific Islander.
In 2006, Microsoft Corporation (Microsoft) hired Simmons as a Business
Administrative Assistant. In October 2008, Simmons started working as the Executive
Business Administrator to Microsoft Corporate Vice President Rosanna Ho. Ho gave
Simmons generally positive performance evaluations but noted concerns about her
No. 73849-6-1/2
interpersonal skills. For example, in the 2009 mid-year evaluation, Ho states, "[Y]ou
have a bright future ahead of you here at Microsoft," but suggests Simmons "work on"
her "interpersonal and communication skills" so they do not "become obstacles in your
career." Ho states, "You sometimes become angry quickly," and notes this is "not
acceptable at the [Executive Business Administrator] levels." In the 2009 annual
performance review, Ho encouraged Simmons to "[i]mprove tone in verbal and written
communications and ensure clarity in your communications when working with others."
In 2011, Simmons applied to work as the Executive Business Administrator to
Bret Arsenault. Arsenault was the Chief Information Security Officer and head of the
Information Security Risk Management (ISRM) team. Arsenault was "responsible for
enterprise-wide information security, compliance, and business continuity efforts" and
oversaw "hundreds of employees."
Simmons interviewed with members of the ISRM team. The ISRM team
members recommended Simmons for hire but raised some concerns about her
"interpersonal skills." When Arsenault interviewed Simmons, he also "had some
concerns based on the feedback from other interviewers, but. . . felt she was a good
candidate for the job." Arsenault's first choice to fill the position was a temporary
employee who had worked as his Interim Executive BusinessAdministrator for about
one year. When that employee did not accept the position, Arsenault offered Simmons
the job as his Executive Business Administrator.
Simmons started working for Arsenault in May 2011. Simmons was responsible
for managing Arsenault's calendar, scheduling meetings, ensuring meeting agendas
were accurate, and coordinating travel arrangements. Simmons' work "affect[ed] the
No. 73849-6-1/3
productivity of the group overall." For example, if Simmons scheduled a meeting at a
time when other members of the ISRM team were unavailable, "50 other people [would]
have to reschedule."
For the 2011 annual performance review, Arsenault relied "largely on [Simmons']
performance in her previous position" and only to a limited extent on her time as his
Executive Business Administrator. Arsenault rated Simmons as a "2." The rating scale
is 1 to 5; 1 is the highest rating and 5 is the lowest. Arsenault states Simmons is a
"great hire" with a "bright future" but notes her "very direct approach" could "land[ ]. . .
negative[ly]" with other members of the team, and suggests she "spend time on . . .
interpersonal awareness."
In September 2011, Arsenault hired Ken Sexsmith as the ISRM team Business
Manager. Sexsmith was responsible for scheduling and setting the agenda for ISRM
team meetings. When selecting meeting dates, Sexsmith had to coordinate with
Simmons. Sexsmith also was responsible for arranging Arsenault's "speaking
engagements." After Sexsmith determined potential speaking engagement dates, he
would "go back and forth" with Simmons to determine what days Arsenault was
available. Simmons and Sexsmith had a "strained" relationship and "there was often
confusion as to how [their] job responsibilities overlapped."
In late 2011, Arsenault hired Brian Fielder as the ISRM team Principal
Information Technology Service Engineer Manager. Arsenault worked with Fielder in
the past and considered him a personal friend. Arsenault referred to Fielder as "the real
kahuna." Fielder is Pacific Islander.
No. 73849-6-1/4
In January 2012, Arsenault sent Simmons and Sexsmith an e-mail about the
need to improve their working relationship and to work collaboratively and effectively.
I have had time to review both of your feedback on [the] working
relationship you have in ISRM. As I pointed out in those sessions and
previously the working relationship between the leader, [Executive
Business Administrator,] and [Business Manager] is cornerstone to an
overall strong leadership team. You both have some work to do to
improve your working relationship and it is my expectation that you will
focus on this area to ensure you can collaborate and partner effectively. I
am happy to meet with you and provide coaching.
Arsenault asked Simmons and Sexsmith to draft three requests and three commitments
to improve their relationship.
Arsenault was "disappointed" by Simmons' response. Arsenault felt Simmons
merely stated she would "continue to do what she did since October but is open to
feedback." Arsenault contacted the Human Resources Department to "figure out how to
help [Simmons and Sexsmith] both be more engaged."
In January 2012, Arsenault met with Simmons to discuss "concerns about her
interactions with others on the team." Arsenault advised Simmons that she "needed to
show immediate and sustained improvement to succeed in her role." Following the
meeting, Arsenault said Simmons' interactions with others improved.
In the 2012 mid-year evaluation, Arsenault states Simmons is "very helpful" in
certain areas and "very passionate about the work." But Arsenault notes Simmons has
a "very direct approach," she has "a negative impact on productivity and perception,"
and her improvement since January in how she interacts with others needs to be
"sustained." In June, Arsenault "again asked Human Resources for guidance on how to
address Ms. Simmons' performance issues and help her meet basic performance
expectations."
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In August, Arsenault met with Simmons to "discuss her performance, including
how critical it was that she be able to work cooperatively with Mr. Sexsmith." In a
follow-up e-mail to Simmons, Arsenault states that despite months of effort, she was
"not meeting expectations" in working with Sexsmith, resulting in a significant negative
"impact on our business" and the ISRM team. The e-mail from Arsenault to Simmons
states, in pertinent part:
As I mentioned in our previous 1:1 and again in this month[']s, I am
concerned about the importance of being able to partner with the Business
[M]anager role as it is critical to the success of the organization. This core
requirement for your role was something we made clear upon your arrival
and you are not meeting expectations. This was so key we ensured you
were integral to the hiring of the new Business Manager. Unfortunately
this partnership is still not meeting expectations despite months of my
effort to reconcile via coaching, joint meetings etc. This is having a
significant impact on our business and affecting individuals beyond you
and the Business manager, not to mention the clear impact on both of you
directly.
Simmons responded, "I do not have a partnering problem with anyone else in the
[organization]." Simmons asserted it is "incredibly difficult that you continuously lay
100% blame on [Sexsmith's] inability to partner on me."
In response, Arsenault sent an e-mail to Simmons clarifying that he "never
blamed this 100% on you," that her "partnering assertions are not shared by all in
[ISRM]," and that she should "seek to understand why rather than be defensive."
To be clear [M]arnie I am just following up on our 1 on 1.... I have never
blamed this 100% on you and have specifically corrected you on that
perspective before and remind you again that is not now nor has never
been my assertion. Ken has a part to play and as his manager Ideal
directly with him on that. However, this is feedback to you re my
expectations of your role. On options, we have tried various iterations with
little improvement as you acknowledged in the last two 1 on 1's. [T]he last
feedback I asked for took over a month to get a response and only with
continual reminders. I want to be sure you understand that your
partnering assertions are not shared by all in [ISRM] or with our partners.
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It would behoove you to seek to understand why rather than be defensive
as there could be key learning's [sic] to help drive interpersonal
awareness.
In the September 2012 annual performance review, Arsenault gave Simmons the
lowest rating. Arsenault notes Simmons "continues to be a very hard worker" who
"takes pride in her strong work ethic." However, "results in FY12[1]. . . were below
expectations" and there were "significant challenges with cross team collaboration and
difficult communications. . . . Mamie has struggled with treating people equitably and
with appropriate respect."
Mamie's results in FY12 against commitments, how the work was
accomplished, and overall impact to the business were below
expectations. This was a very tough year and we had inconsistencies with
Calendar management and travel logistics (particularly international
travel). Additionally we had significant challenges with cross team
collaboration and difficult communications. While Marnie has the best
interest of the group in mind "how" that gets communicated in difficult
situations is having a negative impact on our business, several of our
partners and the team. Feedback during the review process and my own
experience demonstrate that Marnie has struggled with treating people
equitably and with appropriate respect. This is not isolated but was
particularly acute with her relationship with our Business Mangers and
Recruiting Partner. Several escalations were raised and numerous
attempts to resolve the issues failed to yield acceptable results.
Arsenault also noted Simmons was "on occasion demeaning to others," "quick to
point out what was wrong in others [sic] people work," and needed to "demonstrate
significant improvement in [her] performance for [her] to meet expectations and be
successful in [her] role and at Microsoft."
Lastly I was concerned how Marnie would shut down and shut others out.
She was on occasion demeaning to others and would isolate others form
[sic] decision making and information. There were several complaints
about people being removed from message threads and then not updated
on the final outcome. In addition she was quick to point out what was
wrong in others [sic] people work without engaging in "how" to fix it. This
1 Fiscal year 2012.
No. 73849-6-1/7
behavior drained the energy and inadvertently created a fear of directly
engaging with Marnie on sensitive issues. . . . You need to demonstrate
significant improvements in your performance for you to meet
expectations and be successful in your role and at Microsoft.
Arsenault asked Simmons to prepare a "performance plan" and "suggested she
take a training class on interpersonal awareness." Simmons "disagreed" with
Arsenault's assessment of her performance and refused to sign her review.
In early January 2013, Arsenault sent Simmons an e-mail identifying a number of
areas where he had "not seen the attention or demonstrated improvements" and areas
"to focus on for improvement." These issues included "Communications: Follow up and
Prioritization;" "Collaboration / treating others with Respect;" and "The Planning,
Organizing and Coordinating components of the role." Arsenault noted an "ongoing
pattern of behavior from FY12" that "continues into FY13" and that Simmons was "not
meeting expectations."
The above [set of concerns] has been an ongoing pattern of behavior from
FY12 and continues into FY13. I was explicit during your performance
review on FY13 expectations for your role. This continuing behavior of
lack of initiative to increase your capability expected in your role deprives
you of the ability to course correct when you are receiving feedback not
only from me but others that may also provide it to you. I expect you to be
able to take, understand and incorporate feedback continuously to
demonstrate improvement and meet expectations for your role. . .. You
are not meeting expectations for your role.
Arsenault continued to work with the Human Resources Department regarding
his concerns and asked for assistance to help Simmons improve. Meanwhile, other
team members expressed "concerns" about Simmons to Arsenault and the Human
Resources Department.
By late January, Simmons still had not provided the performance plan Arsenault
requested after her September 2012 performance review. On January 21, Arsenault
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No. 73849-6-1/8
sent Simmons an e-mail about the failure to deliver the performance plan. Arsenault
states he has "not seen any improvement" and Simmons continues "not to meet
expectations" for her role.
You have failed to deliver your performance plan after 4 months. . . . This
is another miss on delivering your plan but more importantly an example
of where you are not taking the feedback and working on the agreed upon
deliverable. . . . Marnie I have not seen any improvement relative to the
feedback in your annual review nor any concerted effort to address the
concerns raised despite resources being offered from various [Human
Resources] personnel and [leadership team] members.
I have been explicit regarding expectations for your role and deliverables.
You continue not to meet expectations for your role.
On February 11, 2013, Arsenault and a Human Resources Department
representative met with Simmons and terminated her employment. The termination
letter states, "Your employment is being terminated because your job performance and
competency levels have not met minimum performance standards and expectations for
your position."
In March 2013, Sara Young began working as Interim Executive Business
Administrator to Arsenault. ISRM team member Chris Hildenbrand had hired Young in
approximately January 2012 to work as his Business Administrator. Young applied to
fill the Executive Business Administrator position permanently. Arsenault interviewed
four candidates for the position. Arsenault hired Young for the position. Young was 32
years old at the time.
On September 8, 2014, Simmons filed a lawsuit against Microsoft alleging age
and race discrimination in violation of the Washington Law Against Discrimination,
chapter 49.60 RCW.
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No. 73849-6-1/9
Microsoft filed a motion for summary judgment dismissal of the lawsuit. Microsoft
argued there were legitimate nondiscriminatory reasons to terminate Simmons based
on "significant performance issues." Specifically, lack of "interpersonal, communication
and collaboration skills" and ongoing conflicts with Business Manager Sexsmith and
others. Microsoft argued there was "nothing to suggest... pretext for unlawful
discrimination" based on Simmons' age or race.
In support, Microsoft submitted deposition excerpts; copies of the 2009 mid-year
evaluation and annual performance review, the 2010 mid-year evaluation, the 2011
annual performance review, and the 2012 mid-year evaluation and annual performance
summary; copies of numerous e-mails between Arsenault and Simmons; copies of
e-mails between Arsenault and the Human Resources Department; and declarations
from several people including Ho, Young, and Arsenault.
Ho states that "[djuring the time I managed Ms. Simmons, I had several
conversations with her about her communication style." Ho states Simmons "also had
conflicts with one of my business managers."
Young states she began working at Microsoft in 2009 and from January 2012 to
May 2013, "on an as-needed basis, supported Mr. Arsenault's entire organization."
From approximately January 2012 to May 2013, I reported to one of Mr.
Arsenault's direct reports, Chris Hildenbrand. In that role I supported
three of Arsenault's direct reports, including Mr. Hildenbrand; acted as Mr.
Arsenault's [Executive Business Administrator] when Ms. Simmons was
out of the office; and, on an as-needed basis, supported Mr. Arsenault's
entire organization, including his Business Manager, Ken Sexsmith.
In February 2013, Young "started managing Mr. Arsenault's calendar while still working
full time for Mr. Hildenbrand and supporting the rest of Mr. Arsenault's organization." In
No. 73849-6-1/10
March 2013, Young began working as Interim Executive Business Administrator to
Arsenault.
Arsenault describes the "issues and conflicts" while Simmons worked as his
Executive Business Administrator and the steps he took to address the issues.
Arsenault states he "had to spend inordinate amounts of time debating with Ms.
Simmons about her performance issues and seeking to resolve conflicts between her
and others." But Arsenault "did not see .. . improvement" in her performance and there
was "no indication she would sufficiently improve in the near future." Arsenault states,
"Ms. Simmons' ongoing performance issues, coupled with the demands of the business,
drove the need for change." Arsenault also states, "When Ms. Simmons worked at
Microsoft I did not know her age or if she was under or over age 40. Nor did I know her
father was Caucasian or that she identifies as Pacific Islander."
In opposition, Simmons argued the decision to terminate was based on her age
and race. Simmons noted the positive performance reviews she received as well as a
"Kudos" award and a "Team Award."2 Simmons argued Microsoft gave "inconsistent
and ambiguous" reasons for her termination and her 2012 performance review was
"entirely inconsistent" with her previous performance evaluations. Simmons asserted
replacing her with a "much younger, less-experienced employee" was evidence ofage
discrimination, and Arsenault's use of the phrase "real kahuna" was evidence of race
discrimination.
Simmons submitted a declaration, her deposition testimony, performance
reviews from 2007 until 2012, and a copy of the January 2013 "Microsoft 360 Feedback"
2The record shows the Kudos award was merely a "Thank you" e-mail from a colleague. The
Team Award was unrelated to Simmons' job duties and given to 11 other employees, including Young, for
volunteering to help put on a company potluck.
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No. 73849-6-1/11
report. In her deposition, Simmons states that near the time Arsenault hired Brian
Fielder, Arsenault told her, "I'm bringing in the real kahuna." Simmons testified she
interpreted the statement to mean that she was a "halfbreed" and "not the real deal, not
the real Hawaiian." In her declaration, Simmons states the comment "was offensive to
me because it implied that I was not a real Hawaiian/Pacific Islander."
The 2007 and 2008 performance reviews from her former supervisor, Walter
Korn, are generally positive. The performance reviews from Ho are also generally
positive but Ho notes concerns about interpersonal and communication skills. In the
Microsoft 360 Feedback report, Arsenault and 12 of Simmons' other colleagues rated
her in a number of categories including "Interpersonal Awareness" and "Communication
Skills." Simmons' colleagues gave her higher scores than Arsenault. The combined
scores show that Simmons received low ratings for Interpersonal Skills and
Communication Skills.
Microsoft argued the undisputed record showed the reasons for terminating
Simmons were "always focused on aspects of Ms. Simmons' performance and its
impact on the business, particularly her communication style and difficulty working with
others." Microsoft argued Simmons did not raise a reasonable inference of age or race
discrimination. Microsoft asserted the fact that Arsenault hired Young to replace
Simmons did not indicate age was a substantial factor in the termination decision, and
Arsenault's use of the phrase "real kahuna" did not raise a reasonable inference of
racial discrimination.
The court granted the motion for summary judgment and dismissed the lawsuit.
Simmons appeals.
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No. 73849-6-1/12
ANALYSIS
Simmons contends the court erred in dismissing her discrimination lawsuit
against Microsoft. Simmons asserts there are genuine issues of material fact as to
whether either age or race was a substantial factor in the decision to terminate her
employment.3
Standard of Review
We review an order of summary judgment dismissal de novo, engaging in the
same inquiry as the trial court. Citizens All, for Prop. Rights Legal Fund v. San Juan
County. 184 Wash. 2d 428, 435, 359 P.3d 753 (2015). Summary judgment is appropriate
only when there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. CR 56(c); Scrivener v. Clark Coll.. 181 Wash. 2d
439, 444, 334 p.3d 541 (2014). We consider all facts and make all reasonable factual
inferences in the light most favorable to the nonmoving party. Young v. Key Pharms.,
Inc.. 112 Wash. 2d 216, 226, 770 P.2d 182 (1989). Speculation and "mere allegations,
denials, opinions, or conclusory statements" do not create a genuine issue of material
fact. Int'l Ultimate. Inc. v. St. Paul Fire & Marine Ins. Co., 122 Wash. App. 736, 744, 87
P.3d 774 (2004) (citing CR 56(e); Grimwood v. Univ. of Puoet Sound. Inc.. 110 Wash. 2d
355, 359, 753 P.2d 517 (1988)).
Under the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW,
it is an unfair practice for an employer to discharge any person from employment on the
basis of age or race. RCW 49.60.180(2).
3 Simmons also seeks review of an order denying her CR 56(f) motion to continue but fails to
assign error to the order or present any argument addressing the order in her briefing. Failure to assign
error or provide argument precludes appellate consideration. RAP 10.3(a)(4), (6); Jackson v. Quality
Loan Serv. Corp.. 186 Wash. App. 838, 845-46, 347 P.3d 487 (2015).
12
No. 73849-6-1/13
Where there is no direct evidence of discrimination, we use the McDonnell
Douglas/Burdine burden-shifting framework. McDonnell Douglas Corp. v. Green. 411
U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Texas Dep't of Cmtv. Affairs
v. Burdine. 450 U.S. 248, 257, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981);4 Scrivener.
181 Wash. 2d at 445; Davis v. Microsoft Corp.. 149 Wash. 2d 521, 546, 70 P.3d 126 (2003).
The plaintiff bears the initial burden of establishing a prima facie case of discrimination.
Burdine. 450 U.S. at 252-53; Scrivener. 181 Wash. 2d at 446. The burden of production
then shifts to the employer to articulate a legitimate nondiscriminatory reason for the
adverse employment action. Burdine. 450 U.S. at 253; Scrivener. 181 Wash. 2d at 446.
The burden of the employer is not one of persuasion, but rather a burden of production.
Grimwood. 110 Wash. 2d at 364. If the employer articulates a legitimate nondiscriminatory
reason, the burden shifts back to the plaintiff to produce evidence that the legitimate
nondiscriminatory reason for the employment action is a pretext for a discriminatory
purpose. Scrivener. 181 Wash. 2d at 446.
For the first time on appeal, Simmons claims Microsoft did not present evidence
showing that Microsoft terminated her for a legitimate nondiscriminatory reason. "Under
RAP 9.12, arguments not brought to the attention of the trial court at the time of
summary judgment may not be considered by the appellate court." Houk v. Best Dev. &
Const. Co.. Inc., 179 Wash. App. 908, 915, 322 P.3d 29 (2014); Nelson v. McGoldrick,
127 Wash. 2d 124, 140, 896 P.2d 1258 (1995). In any event, the record establishes
Microsoft articulated legitimate nondiscriminatory reasons to terminate Simmons.
4 Because the WLAD substantially parallels Title VII of the Civil Rights Act of 1964, 42 U.S.C.
section 2000e-2(a), and the Age Discrimination in Employment Act of1967, 29 U.S.C. section 623(a), we
may look to federal case law for guidance. Kumar v. Gate Gourmet. Inc., 180 Wash. 2d 481, 490-91, 325
P.3d 193(2014): Grimwood. 110 Wash. 2d at 361.
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No. 73849-6-1/14
Specifically, that Simmons lacked "interpersonal, communication and collaboration skills
and had ongoing conflicts with the group's Business Manager (Mr. Sexsmith) and
others."
The plaintiff may meet the pretext prong by offering sufficient evidence to create
a genuine issue of material fact (1) that the employer's reason is pretextual or (2) that
although the employer's stated reason is legitimate, "discrimination nevertheless was a
substantial factor motivating the employer." Scrivener, 181 Wash. 2d at 446-47. "A
'substantial factor' means that the protected characteristic was a significant motivating
factor bringing about the employer's decision." Scrivener. 181 Wash. 2d at 444.
Inconsistent reasons for a defendant's employment decisions may support an
inference that the employer's articulated reason is a pretext for discrimination. See Rice
v. Offshore Svs.. Inc.. 167 Wash. App. 77, 91, 272 P.3d 865 (2012); Sellsted v. Wash.
Mut. Sav. Bank. 69 Wash. App. 852, 863, 851 P.2d 716 (1993). Simmons asserts
Microsoft provided "inconsistent" reasons for her termination. Simmons points to the
portions of Arsenault's declaration where he states he "met with Ms. Simmons to
discuss my concerns about her interactions with others on the team" and "again
addressed her performance issues." Neither of Arsenault's statements is inconsistent
with the articulated reason for terminating Simmons' employment and do not raise a
reasonable inference that Microsoft's articulated reason is a pretext for race or age
discrimination. Microsoft consistently stated it terminated Simmons because of her
performance issues related to lack of interpersonal, communication, and collaboration
skills as well as her ongoing conflict with Sexsmith.
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No. 73849-6-1/15
Simmons also asserts her "overwhelmingly positive" performance reviews create
a reasonable inference that Microsoft's articulated reason for terminating her
employment is a pretext for race and age discrimination.
The fact that Simmons received generally positive performance reviews from
previous supervisors does not lead to a reasonable inference that Microsoft's articulated
reason for terminating her employment was a pretext for discrimination based on age or
race. McCann v. Tillman, 526 F.3d 1370, 1377 (11th Cir. 2008) (Previous supervisor's
"satisfactory ratings" and commendation from colleagues did not raise reasonable
inference of pretext because " '[different supervisors may impose different standards of
behavior.'") (quoting Roias v. Florida, 285 F.3d 1339, 1343 (11th Cir. 2002)). An
employee's "subjective beliefs and assessments as to h[er] performance are irrelevant"
to show pretext. Griffith v. Schnitzer Steel Indus., Inc.. 128 Wash. App. 438, 447, 115
P.3d1065(2005).5
Simmons argues she produced sufficient evidence of age discrimination.
Without citation to authority, Simmons asserts that "replacement by a younger
employee creates a presumption of discriminatory intent." But replacing Simmons with
a younger individual in and of itself does not raise a reasonable inference that Simmons'
age was a significant motivating factor in Arsenault's decision to terminate her. See
Thomas v. Corwin, 483 F.3d 516, 529 (8th Cir. 2007) (finding that plaintiff could not
show the employer's reasons for her termination were a pretext for age discrimination
5Simmonsalso asserts Arsenault "judged" her performance "differently" than that of younger or
non-Pacific Islander employees. Nothing in the record indicates how Arsenault evaluated the
performance of other employees. This conclusory allegation does not raise a material issue of fact as to
Simmons' age discrimination claim. Int'l Ultimate. 122 Wash. App. at 744; Grimwood. 110 Wash. 2d 365.
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No. 73849-6-1/16
where the plaintiff's only evidence was that she was replaced by someone younger).6
For the first time on appeal, Simmons claims Arsenault treated her "differently
than similarly situated young employees" and was "biased against Ms. Simmons." We
decline to address arguments not brought to the attention of the trial court at the time of
summary judgment. RAP 9.12; Houk. 179 Wash. App. at 915; Nelson, 127 Wash. 2d at 140.
Moreover, these conclusory allegations and opinions do not amount to material facts
admissible in evidence showing there is a genuine issue for trial as to Simmons' age
discrimination claim. Int'l Ultimate. 122 Wash. App. at 744; Grimwood. 110 Wash. 2d 365.
Scrivener and Rice are distinguishable. In Scrivener, in addition to hiring a
younger candidate, the college president made remarks indicating a preference to hire
younger people and hired many individuals under 40 but few over 40. Scrivener. 181
Wash. 2d at 442-43. In Rice, in addition to replacing the plaintiff with a much younger
employee, the employer offered inconsistent reasons for termination, and the plaintiff's
supervisor "routinely made age-related comments." Rice. 167 Wash. App. at 90-91.
The only evidence Simmons relies on to argue her race was a significant factor
in the decision to terminate her employment is her recollection that near the time
Arsenault hired Brian Fielder, Arsenault told her he was "bringing in the real kahuna."7
The record shows Simmons did not mention the remark to Arsenault or ask what he
meant. Simmons testified the meaning of "kahuna" "can range from a lot of different
things," but she construed the comment to mean she was a "halfbreed" Pacific Islander
6 See also Griffith, 128 Wash. App. at 456 (evidence "insufficient as a matter of law" to support age
discrimination claim where "only evidence" presented was that plaintiff's "replacement was younger than
he was"); Tusinq v. Pes Moines Indep. Cmtv. Sch. Dist.. 639 F.3d 507, 517 (8th Cir. 2011) (hiring of
employees younger than plaintiff "standing alone, does not create an inference" that the employer
discriminated against plaintiff on the basis of her age).
7 In her reply brief, Simmons claims Arsenault called Jier a "real kahuna." But Simmons'
deposition testimony clearly states that Arsenault was referring to Brian Fielder.
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No. 73849-6-1/17
and thus not the "real kahuna."8 Simmons asserts this "disconcerting comment" raises
a reasonable inference that Arsenault's decision to terminate her was motivated by
racial animus. We disagree.
Even viewed in the light most favorable to Simmons, Arsenault's statement does
not indicate any animus toward individuals of Pacific Islander heritage or raise a
reasonable inference that Simmons' race was a significant motivating factor in
Arsenault's decision to terminate her. The record does not show the decision to
terminate Simmons was related to Arsenault's comment. Arsenault made the comment
more than one year before terminating Simmons. The undisputed evidence shows
Arsenault had worked with Fielder before and considered him a personal friend.
Simmons' argument is based purely on her subjective opinion of the meaning of
Arsenault's statement and does not lead to a reasonable inference of racial
discrimination. See Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 74-75 (2d Cir.
2015) ("even if sincerely held, a plaintiff's 'feelings and perceptions of being
discriminated against' do not provide a basis on which a reasonable jury can ground a
verdict") (quoting Bickerstaff v. Vassar Coll.. 196 F.3d 435, 456 (2d Cir. 1999)); Montes
v. Greater Twin Cities Youth Symphonies, 540 F.3d 852, 854, 858-59 (8th Cir. 2008)9
(reference to Haitian employee on at least three occasions as "la bete noire"10 did not
raise reasonable inference that employer's legitimate reasons for termination were
s Webster's Third New International Dictionary 1230 (2002) defines "kahuna" as a Hawaiian word
meaning "native master of a craft or vocation."
9 Alterations in original.
10 In French, "la bete noire" translates literally to " 'the black beast.'" Montes, 540 F.3d at 854.
The English language has incorporated the phrase as meaning " 'one that is particularly disliked orthat is
to be avoided.'" Montes, 540 F.3d at 854 (quoting The American Heritage Dictionary of the English
Language 174 (4th ed. 2006)).
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No. 73849-6-1/18
pretext for racial discrimination even where employee testified that" 'in [his] opinion,'
use of the phrase reflected 'a discriminatory perception of [his] being' ").11
Simmons also claims Arsenault treated "similarly situated younger white
employee" Sara Young differently. But Simmons points to nothing in the record
indicating Young's race. There is also no evidence in the record regarding Young's
performance reviews.
We conclude Simmons did not create a genuine issue of material fact as to
whether age or race was a substantial factor in the decision to terminate her
employment, and affirm summary judgment dismissal of the lawsuit against Microsoft.
WE CONCUR:
J^tU /I _S*Ld^ptf.
11 See also Weinstock v. Columbia Univ.. 224 F.3d 33, 43-45 (2d Cir. 2000) (use of the words
"nice" and "nurturing" to describe female assistant professor during tenure proceedings was not evidence
that university's proffered reason for terminating her was pretextfor sex discrimination).
18