IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DEBORAH L. CAHILL, MD, No. 82590-9-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION SWEDISH HEALTH SERVICES d/b/a SWEDISH MEDICAL CENTER, a Washington nonprofit corporation; INSYTU, LLC, a Washington for-profit limited liability company; PROVIDENCE HEALTH & SERVICES d/b/a PROVIDENCE ST. JOSEPH HEALTH, a Washington nonprofit corporation; and DOES 1-100,
Respondents.
HAZELRIGG, J. — Dr. Deborah Cahill appeals from the summary judgment
dismissal of her claims for employment discrimination and breach of contract.
Because Cahill fails to demonstrate a genuine issue of material fact, we affirm
the dismissal. However, the trial court erred in awarding several costs and we
therefore reverse and remand for correction of the cost award.
FACTS
In December 2014, Cahill was contacted about a simulation facilitator
position at InSytu, a subsidiary of Swedish Health.1 At the time, Cahill’s medical
1 For clarity, we refer to InSytu and Swedish as “Swedish.”
Citations and pin cites are based on the Westlaw online version of the cited material. No. 82590-9-I/2
license was valid, but due to be suspended. She had informed Swedish of the
potential suspension, as well as her struggles with alcoholism. On January 19,
2015, Swedish offered Cahill a physician facilitator position at the rate of
$150.00/hour, which she accepted. On March 26, 2015, Cahill’s license was
suspended. Cahill delayed her start date so she could complete additional
alcohol treatment. A few weeks before her new start date, Swedish informed
Cahill that it was no longer able to offer her the same role or pay because of her
license status. Cahill agreed to take a different role, specially created for her in
order to accommodate her license suspension, at a lower pay rate. In April 2019,
Cahill earned reinstatement of her license. As a result, Cahill’s supervisor,
Theresa Demeter, submitted a Position Request Form (PRF) to move Cahill into
a physician facilitator role with higher pay.
Cahill worked at Swedish for four years without any documented
performance issues. In May 2019, two members of the InSytu/Swedish
leadership team (Ian Doten and Demeter) met with Cahill to discuss performance
concerns; Cahill was placed on a 90-day Performance Improvement Plan. The
next month, Cahill was placed on administrative leave pending an investigation
after another Swedish employee made a complaint about Cahill and stated that
she would leave Swedish to avoid working with Cahill. While Cahill was on
administrative leave, Swedish’s compliance director Jennifer McAleer discovered
that Cahill was on the Washington State Health Care Authority’s (HCA) list of
excluded providers. One of Swedish’s policies, PROV-HR-423 (Policy), provides
that any employee excluded from participation in government programs will be
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terminated. On July 1, 2019, Cahill was terminated based on the Policy. Days
later, Cahill’s name was removed from the HCA list at her request and she asked
Swedish to be reinstated. Demeter testified that she declined to reinstate Cahill
because of performance concerns.
Several months later, Cahill filed a complaint for employment
discrimination, wrongful termination, and defamation. The complaint was later
amended to add claims for retaliation, disparate treatment, and breach of
contract. Cahill ultimately removed her claim for defamation. In February 2021,
Swedish moved for summary judgment dismissal, arguing that there were no
genuine issues of material fact and it was entitled to judgment as a matter of law.
The court granted Swedish’s motion for summary judgment and dismissed
Cahill’s claims. The court also granted Swedish’s motion for costs under CR 68.
Cahill timely appeals.
ANALYSIS
This court engages in a de novo review of a summary judgment dismissal,
conducting the same inquiry as the trial court. Marquis v. City of Spokane, 130
Wn.2d 97, 104-05, 922 P.2d 43 (1996). Considering all evidence and reasonable
inferences in the light most favorable to the nonmoving party, this court
determines whether “there is a genuine issue as to any material fact and whether
the moving party is entitled to judgment as a matter of law.” Id. at 105. However,
the nonmoving party may not rely solely on speculation or bare assertions.
Becker v. Washington State Univ., 165 Wn. App. 235, 245, 266 P.3d 893 (2011).
In the context of a workplace discrimination action, “the worker must do more
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than express an opinion or make conclusory statements,” but instead “must
establish specific and material facts to support each element of [their] prima facie
case.” Marquis, 130 Wn.2d at 105.
I. Disparate Treatment
Cahill first alleges the court erred in finding there was no issue of material
fact as to her disparate treatment claims. Cahill asserts several acts of disparate
treatment based on her alcoholism and her age: termination and refusal to
reinstate, as to both alcoholism and age, and lesser pay than her peers based on
her alcoholism.
The Washington Law Against Discrimination (WLAD), ch. 49.60 RCW,
prohibits employers from taking adverse actions against employee based on,
among other things, age and disability. RCW 49.60.180. The employee must
first demonstrate the prima facie elements and, if they successfully do so, there
is an inference of discrimination. Marquis, 130 Wn.2d at 114. The employer may
rebut this inference by presenting evidence that they had a legitimate,
nondiscriminatory reason for the adverse action. Id. “At this point, the plaintiff
retains the final burden of persuading the trier of fact that discrimination was a
substantial factor in the disparate treatment.” Id. The plaintiff can meet this
burden by demonstrating that the employer’s reason is pretext for discrimination
by showing: “(1) the employer’s reasons have no basis in fact, (2) the employer
was not actually motivated by the reasons, or (3) the reasons are insufficient to
prompt the adverse employment decision.” Becker, 165 Wn. App. at 252.
“[S]ummary judgment to an employer is seldom appropriate in the WLAD cases
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because of the difficulty of proving a discriminatory motivation.” Scrivener v.
Clark Coll., 181 Wn.2d 439, 445, 334 P.3d 541 (2014). However, if the “‘record
conclusively revealed some other, nondiscriminatory reason for the employer’s
decision, or if the plaintiff created only a weak issue of fact as to whether the
employer’s reason was untrue and there was abundant and uncontroverted
independent evidence that no discrimination had occurred,’” summary judgment
in favor of the employer is proper. Becker, 165 Wn. App. at 252-53 (quoting
Milligan v. Thompson, 110 Wn. App. 628, 637, 42 P.3d 418 (2002)) (internal
quotation marks omitted).2
A. Lower Pay Based on Alcoholism
Cahill first contends she was paid less than her peers based on her
alcoholism. In a disparate treatment claim, the plaintiff must demonstrate that (1)
they are in a protected class, (2) they were treated less favorably than (3)
similarly situated employees not in the protected class, (4) who do the same
work. Davis v. West One Auto. Grp., 140 Wn. App. 449, 459, 166 P.3d 807
(2007). Swedish argues that Cahill failed to demonstrate that it took an adverse
employment action against her or alternatively, her rate of pay was based on the
legitimate, nondiscriminatory reason that she did not possess a valid medical
license.
2 Swedish argues Cahill’s claim fails based on the same actor inference. We may apply the same actor inference “‘[w]hen someone is both hired and fired by the same decision makers within a relatively short period of time, there is a strong inference that [they were] not discharged because of any attribute the decision makers were aware of at the time of hiring.’” Lodis v. Corbis Holdings, Inc., 172 Wn. App. 835, 853, 292 P.3d 779 (2013) (quoting Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 189-90, 23 P.3d 440 (2001)). However, it is not clear from the record who was responsible for Cahill’s hiring and firing. Since Cahill is entitled to all reasonable inferences as the non-moving party there is a question of fact as to the same actor inference, and we decline to affirm the dismissal on this basis.
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“An adverse employment action involves a change in employment that is
more than an inconvenience or alteration of one’s job responsibilities.” Boyd v.
Dep’t of Soc. & Health Servs., 187 Wn. App. 1, 13, 349 P.3d 864 (2015). This
“‘depends on the circumstances of the particular case, and should be judged
from the perspective of a reasonable person in the plaintiff’s position.’” Id.
(quoting Tyner v. State, 137 Wn. App. 545, 565, 154 P.3d 920 (2007)) (internal
quotation marks omitted). An adverse employment action includes “‘“hiring,
firing, failing to promote, reassignment with significantly different responsibilities,
or a decision causing a significant change in benefits.”’” Ellorin v. Applied
Finishing, Inc., 996 F. Supp. 2d 1070, 1093 (2014) (quoting Vance v. Ball State
Univ., 570 U.S. 421, 431, 133 S. Ct. 2434, 186 L. Ed. 565 (2013)) (analyzing the
WLAD).3
First, the parties agree that Cahill’s alcoholism qualifies as a disability
under the WLAD.4 Second, Cahill had been offered employment at $150.00 per
hour in a particular position and she accepted in January 2015. In May 2015,
before beginning employment, Cahill agreed to a different position at a lower rate
of $53.00 per hour and the change was noted in the employee system. The
parties disagree about whether this is an adverse employment action. Swedish
argues because Cahill had not started work and accepted a lower pay rate there
was no adverse employment action. However, this court gives Cahill all
3 Washington courts look to federal case law interpreting the AEDA, ADA, and Title VII to
guide analysis of the WLAD, though those cases are not binding. Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 491, 325 P.3d 193 (2014). 4 Washington courts have not decided whether alcoholism is a disability under the WLAD,
leaving the question to juries and the Legislature. Phillips v. City of Seattle, 111 Wn.2d 903, 910, 766 P.2d 1099 (1989).
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reasonable inferences as the nonmoving party. Because Cahill had been
offered, and accepted, a position before her role was changed and her pay
reduced, Cahill raised a genuine issue of material fact as to whether there was
an adverse employment action. Third, Cahill argues her similarly situated
colleagues who were not alcoholics were paid at a higher scale. However, Cahill
failed to provide any evidence of colleagues who did not have a medical license
who were paid at a higher rate. At oral argument, Cahill argued other physician
facilitators were similarly situated because they worked in the same role.5 Cahill
ignores the key distinction between herself and the other facilitators — she
lacked an active, valid medical license. Without any evidence of a similarly
situated employee who received more favorable treatment, she fails to meet this
element of the prima facie case.
Ultimately, Cahill has the burden to demonstrate, with more than mere
speculation or conclusory statements, that the disparate pay was based on
alcoholism rather than her lack of a medical license. Cahill failed to meet her
burden and thus summary judgment dismissal was proper.
B. Termination Based on Age
In a disparate treatment claim based on age, a plaintiff makes a prima
facie case by demonstrating they: (1) were 40 years or older, (2) were
discharged, (3) were doing satisfactory work prior to the discharge, and (4) were
“replaced by a younger person.” Rice v. Offshore Sys., Inc., 167 Wn. App. 77,
5 Wash. Court of Appeals oral argument, Deborah L. Cahill, MD, v. Swedish Health
Services et al, No. 82590-9-I (Sept. 29, 2022), at 5 min., 22 sec., video recording by TVW, Washington State's Public Affairs Network, https://tvw.org/video/division-1-court-of-appeals- 2022091086/?eventID=2022091086.
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88, 272 P.3d 865 (2012). “[T]he employee is not required to show that [they
were] replaced by someone outside” the statutorily protected range (40-70), but
they do need to show they were “replaced by someone significantly younger.”
Griffith v. Schnitzer Steel Indus., Inc., 128 Wn. App. 438, 446-47, 115 P.3d 1065
(2005). Cahill alleges she was terminated and denied reinstatement based on
her age.
First, the parties agree Cahill is in the protected age range. Cahill was
born in 1952 and in February and March 2019 was 66 years old.6 The parties
also agree that Cahill was discharged. The parties disagree as to the last two
elements. Cahill argues that because she was receiving satisfactory
performance reviews until March 2019, she was “doing satisfactory work.” On
May 7, 2019, Cahill had a meeting with Demeter and Doten where the latter
shared concerns about Cahill’s “professionalism, her interactions with other
InSytu staff, her conduct in front of clients, her truthfulness, her ability to work
independently, follow-through on assigned tasks and her ability to meet
expectations.” Cahill was placed on a Performance Improvement Plan. A month
later, Cahill was placed on administrative leave pending an investigation by
Demeter after another employee made a complaint regarding Cahill. Cahill was
ultimately terminated in July 2019. Based on a summary judgment standard,
Cahill likely produced enough evidence to raise a genuine issue of material fact
as to whether she was doing satisfactory work prior to discharge. Finally, Cahill
6 Cahill does not provide any record citations to support this, nor does she mention her
age at the time of termination. We accept the parties’ apparent agreement that she was within the protected age range.
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alleges new hire Kristen Austen,7 who was in her 40s, was intended as Cahill’s
replacement. However, Austen was hired approximately four to five months prior
to Cahill’s termination and held a part-time position. Cahill’s only evidence that
Austen was her replacement was Cahill’s own belief and speculation that there
were fewer simulations scheduled and therefore no need for an additional
physician facilitator. This is not sufficient to demonstrate that Cahill was replaced
by someone much younger and thus summary judgment dismissal of this claim
was proper.
C. Claims Raised for the First Time on Appeal
Cahill next alleges disparate treatment based on Swedish’s refusal to
reinstate her after termination based on age. However, this claim was not raised
in her complaint or in response to Swedish’s motion for summary judgment.
Under RAP 2.5(a), we “‘may refuse to review any claim of error which was not
raised in the trial court.’” Fireside Bank v. Askins, 195 Wn.2d 365, 374, 460 P.3d
157 (2020) (quoting State v. O’Hara, 167 Wn.2d 91, 97-98, 217 P.3d 756 (2009))
(internal quotation marks omitted). Likewise, Cahill failed to raise the claims of
termination and refusal to reinstate based on alcoholism until this appeal. We
refuse to review these claims based on RAP 2.5(a).8
7 Cahill uses “Austen” while Swedish uses “Austin.” 8 Further, these claims would be improper for review as inadequately briefed. Under RAP
10.3(6), an appellant must provide an “argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record.” See Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App. 474, 486, 254 P.3d 835 (2011). Cahill provides no substantive argument on these assignments of error, simply asking in a footnote that the court analyze them based on the same framework as her termination and refusal to reinstate claims based on age.
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II. Breach of Contract
Cahill next avers the trial court erred in dismissing her claims for breach of
contract because she raised a material issue of fact as to her claim for
promissory estoppel and promise of specific treatment under the Policy.
A. Promissory Estoppel
A promissory estoppel claim contains five elements:
“(1) a promise which (2) the promisor should reasonably expect to cause the promisee to change [their] position and (3) which does cause the promisee to change [their] position (4) justifiably relying upon the promise, in such a manner that (5) injustice can be avoided only by enforcement of the promise.”
Becker, 165 Wn. App. at 249 (quoting Havens v. C & D Plastics, Inc., 124 Wn.2d
158, 171-72, 876 P.2d 436 (1994)) (internal quotation marks omitted). Swedish
argues that the InSytu leadership team was not authorized to make promises as
to compensation, therefore the first element is not met. In that same vein, it
contends Cahill’s reliance was not reasonable (element four) because Demeter
had no control over Cahill’s rate of pay.
Assuming without deciding that there was a promise, Cahill’s claim fails on
the final element. The fifth element requires the promisee demonstrate that
injustice can only be avoided by enforcing the promise. Here, after Cahill’s
license was reinstated, Demeter submitted a PRF to move Cahill into a Physician
Facilitator role which carried a higher rate of pay. Demeter testified at her
deposition that the request “can take six to eight or more weeks to get it
approved.” Practically speaking, Swedish was in the process of satisfying any
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promise made to Cahill and thus there is no injustice to avoid. This element is
not met.
B. Specific Treatment Under the Policy
Cahill also argues she was promised specific treatment under the Policy.
An employee may bring suit to “enforce promises that an employer made in an
employee handbook” by demonstrating (1) a statement in the employee manual
contained a promise of “specific treatment in specific situations,” (2) the
employee justifiably relied on that promise, and (3) breach of that promise.
Bulman v. Safeway, Inc., 144 Wn.2d 335, 340-41, 27 P.3d 1172 (2001).
Here, the Policy states that all individuals employed by Providence will “be
checked against federal government exclusion lists.”9 It continues, stating
“Providence will not . . . continue the employment of . . . any individual who has
been excluded from participation in government programs.” If an employee’s
name is on the Office of Inspector General — List of Excluded Individuals/Entities
(OIG-LEIE) and/or General Services Administration — System for Award
Management (GSA-SAM) list, they will be terminated if they cannot provide proof
of non-exclusion. The Policy provides an appeals process, where “[i]f an
employee believes he/she has been incorrectly identified as being on the OIG-
LEIE and/or GSA-SAM lists, the employee may appeal the decision.” McAleer,
Swedish’s compliance director, testified that the appeals process provision is not
to allow employees to attempt to remove themselves from an exclusion list, and
9 Language of the Policy narrows applicability to federal exclusion lists. The parties agree that the excluded provider list Cahill appeared on is a list maintained by the Washington Health Care Authority, a state agency.
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therefore either seek reinstatement or avoid termination, but only to demonstrate
that they are not the individual identified on the list. Cahill does not dispute that
she was on the HCA exclusion list, therefore there was no breach of specific
treatment under the Policy.
III. Cost Award
Finally, Cahill argues the trial court erred by awarding Swedish costs not
authorized by statute. She argues the court erred by (1) awarding court reporter
attendance fees, (2) awarding fees for depositions not introduced at the summary
judgment stage, (3) failing to prorate costs, and (4) allowing costs for invoices
from plaintiff’s expert.
This court engages in a two-step process in reviewing a cost award.
Estep v. Hamilton, 148 Wn. App. 246, 259, 201 P.3d 331 (2008).10 The court first
reviews de novo whether a statute authorizes the award, then reviews the
amount of the award under an abuse of discretion standard. Id. Cahill first
contends the court improperly awarded Swedish fees separately under CR 68
and RCW 4.84.010. This court has consistently held, in published and
unpublished opinions, that CR 68 delineates which party may obtain costs as the
prevailing party, while RCW 4.84 governs which costs the party may recover,
rather than providing two independent bases for costs.11 Based on our
10 As a general rule, the individual divisions of this Court of Appeals are not bound by the
decisions of the others. In re Pers. Restraint of Arnold, 190 Wn.2d 136, 154, 419 P.3d 1133 (2018). Rather, decisions from other divisions are afforded persuasive authority. Id. Division One of this court has followed Estep on several occasions, and we continue to follow its persuasive analysis. Swedish asks this court to disregard Estep as non-binding authority; we decline to do so. 11 See, e.g., Sims v. Kiro, Inc., 20 Wn. App. 229, 238, 580 P.2d 642 (1978); Yan v.
Pleasant Day Adult Fam. Home, Inc., No. 68976-2-I, slip op. at 20-21 (Wash. Ct. App. Dec. 16,
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precedent, Swedish was entitled only to costs delineated by RCW 4.84.010. By
submitting a CR 68 offer prior to summary judgment, Swedish set the bar higher
in order for Cahill to be the prevailing party; had Cahill been awarded an amount
less than the offer, Swedish would have prevailed. Swedish was not entitled to
separate awards under CR 68 and RCW 4.84.010. As such, any costs not within
the scope of RCW 4.84.010 were incorrectly awarded.
Under RCW 4.84.010, Swedish is entitled to costs associated with
“transcription of depositions used . . . on a pro rata basis for those portions of the
depositions introduced into evidence.” RCW 4.84.010(7). In the context of a
summary judgment proceeding, the prevailing party may only recover costs for
the depositions “‘specifically considered by the trial court.’” Estep, 148 Wn. App.
at 260 (quoting Herried v. Pierce County Pub. Transp. Benefit Auth. Corp., 90
Wn. App. 468, 476, 957 P.2d 767 (1998)).
Cahill challenges line items 10, 15, 16, 18, 19, 20, and 21 from the order
granting Swedish’s costs as not having been introduced by the defendants on
summary judgment. Items 15, 16, 20, and 21 were not noted in the order
granting summary judgment as filings considered by the trial court and therefore
were improperly included in the award to Swedish. Items 10, 18, and 19 were
considered by the trial court, but introduced through Cahill (Skuda’s declaration)
rather than Swedish. However, there is no requirement that the defendant
submit the depositions, only that they be considered by the trial court in making
2013) (unpublished), https://www.courts.wa.gov/opinions/pdf/689762.pdf; Kelly v. Solano, No. 83042-2-I, slip op. at 3-4 (Wash. Ct. App. June 13, 2022) (unpublished), https://www.courts.wa.gov/opinions/pdf/830422.pdf.
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its ruling. As such, the court did not abuse its discretion in awarding costs for
these items.
Cahill next challenges non-prorated court reporter attendance costs (lines
3 and 5),12 but does not discuss why these were error. She provides no authority
for the contention that court reporter fees must be prorated and, without more,
we cannot conclude that the court abused its discretion. She finally challenges
costs for “invoices” from plaintiff’s expert incurred by Swedish for deposing
Cahill’s expert. The deposition and “testimony” from Cahill’s expert Christina
Tapia were not considered by the trial court on summary judgment and therefore
improperly awarded.
We affirm the summary judgment dismissal of Cahill’s claims, but reverse
the cost award and remand with instructions to strike line items 15, 16, 20, and
21.
Affirmed in part, reversed in part and remanded.
WE CONCUR:
12 Cahill challenges these costs as “line items 2 and 6” but the court reporter attendance
fees are at line items 3 and 5.
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