IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
HATSUYO “SUE” HARBORD, ) No. 72731-1-I Appellant, ) ~E ) DIVISION ONE ) c:.n SAFEWAY, INC, ) UNPUBLISHED OPINION ‘I
Respondent. ) FILED: July 25, 2016 ~
BECKER, J. — To defeat a properly supported motion for summary
judgment, the nonmoving party may not rely on the allegations set forth in the
complaint, but must identify evidence establishing a genuine factual issue for
trial. In response to Safeway’s motion for summary judgment, Harbord failed to
submit or identify any admissible evidence supporting her claims of
discriminatory discharge. Moreover, throughout the entire proceedings in the trial
court, Harbord refused to respond to Safeway’s discovery requests or to appear
for a deposition, claiming that she had no obligation to comply with discovery
rules. The trial court dismissed Harbord’s claims on summary judgment and, in
the alternative, for her violation of a discovery order. We affirm and award
Safeway attorney fees for a frivolous appeal. No. 72731-1-1/2
FACTS
Safeway hired Harbord as an office clerk and bookkeeper for its Port
Angeles store in September 2004. Harbord’s duties included the customer
service desk, processing money orders and lottery tickets, filling coin changers,
providing cash to the check stand registers, and balancing daily income with total
store sales. Over time, Safeway determined that Harbord was unable to perform
her duties in an acceptably efficient and timely manner. In 2009, an audit noted
various errors, inaccuracies, and discrepancies in Harbord’s accounting of the
store’s daily receipts. Safeway issued multiple disciplinary notices to Harbord in
2008 and 2009, pointing out specific deficiencies. Despite multiple meetings and
retraining, Safeway concluded that Harbord’s work performance remained
unacceptable.
In 2010 and 2011, Safeway continued to cite Harbord for poor work
performance, including the failure to complete her duties in an acceptable
amount of time and carelessness in performing office procedures. The store
manager also discovered that Harbord was spending a significant amount of time
during her shift writing notes to herself and copying proprietary and confidential
financial information. Harbord later told a Safeway investigator that she took the
notes to “protect herself” but provided no further explanation. Video surveillance
recordings showed that Harbord was moving her computer terminal during her
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shift for no apparent reason. Despite instructions to stop the practice, Harbord
continued to move the computer terminal.
In early 2011, Safeway suspended Harbord for three days for multiple
incidents involving carelessness and inaccuracy. The store manager observed
that Harbord was continuing to spend up to 30 minutes of her shift writing notes
to herself.
In March 2011, Harbord completed a $150 money order for which no
customer was present. Harbord initially claimed that she did not print out the
money order because the transaction was cancelled. Despite Safeway’s
repeated requests at the time, Harbord provided no further explanation.
In April 2011 Safeway suspended Harbord pending an investigation of her
job performance. After concluding that Harbord failed to provide acceptable
responses to the investigator’s questions, Safeway terminated Harbord’s
employment on May 6, 2011, for repeated failure to follow instructions, refusal to
perform assigned tasks, violations of Safeway’s policies regarding confidential
information, and inadequate job performance.
On May 24, 2013, Harbord filed this action against Safeway. Harbord,
who was represented by counsel, alleged wrongful termination in violation of
public policy and violations of the Washington Law Against Discrimination
(WLAD), chapter 49.60 RCW.
-3- No. 72731-1-1/4
Safeway removed the action to federal district court on the basis of
diversity jurisdiction. At some point, Harbord fired her attorney, and the district
court granted her motion to proceed pro Se. The court later remanded the case
back to King County Superior Court after Harbord asserted that her claims
involved less than $75,000.
While the case was proceeding in federal court, Safeway served Harbord
with initial discovery requests. On March 11, 2014, after asserting that it made
repeated unsuccessful attempts to communicate with Harbord about the
discovery requests, Safeway moved to compel. Harbord did not file a response
to the motion to compel, and the district court remanded the case to state court
without ruling on the motion. After the remand, Safeway again attempted to
contact Harbord about the discovery requests.
At the trial court’s CR 16 conference on August 8, 2014, Harbord claimed
that Safeway’s failure to provide her with her “personnel file” was “holding”
everything up. The trial court noted that Harbord had raised this claim before
and had not provided the court with any proof that she ever made a formal
discovery request.
Counsel for Safeway explained that he originally provided Harbord’s
former counsel with the requested documents in searchable PDF format. After
Harbord’s counsel withdrew, Safeway provided Harbord with hard copies.
Recently, Safeway had sent a box containing a third set of the requested
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documents, comprising more than 1,000 pages, to Harbord’s post office box.
Harbord refused the shipment.
Harbord asserted that she rejected the box because counsel for Safeway
had not provided an inventory log of the contents on the outside of the box.
Counsel for Safeway then offered the still-sealed box to Harbord in court and
explained that there was a cover sheet in the box setting forth the contents of the
box. The court informed Harbord that she would be unable to determine if any
documents were missing unless she opened the box and reviewed the contents.
At the conclusion of the hearing, the court entered an order directing
Harbord to accept the discovery documents that Safeway offered. Although
Harbord apparently took the box of documents with her when she left the
hearing, she later returned it to Safeway’s counsel and informed the court that
“Plaintiff does NOT want Rule 26, 33, and 34.”
On August 20, 2014, Safeway filed a second motion to compel Harbord to
respond to discovery requests. Harbord filed a response asserting, among other
things, that the parties did not have an “agreement [with the defendant]. . . under
rule 26, 33, and 34,” that she had a “right to have privilege information/evidence
until trial” and “does not need to release information until trial date,” that she “is
NOT doing this case with rule 26 discovery. . . rule 33 interrogatories, rule 34
producing documents,” that she did not ask for interrogatories, and that she
returned the box of documents because “Plaintiff does not agree with rule 26, 33,
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and 34.” Harbord also claimed that the trial court was unfair to her during the
August 8, 2014, hearing.
On September 8, 2014, the trial court granted the motion to compel,
finding that Safeway had made repeated good faith efforts to obtain the
requested discovery without court action. The court directed Harbord to respond
within 10 days to the discovery requests that Safeway had served more than 10
months earlier and ordered Harbord to pay Safeway’s reasonable costs,
including attorney fees, incurred in preparing the motion to compel. The order
informed Harbord that the failure to comply could result in dismissal of the action.
The court later awarded Safeway reasonable costs, including attorney fees, of
$2,600.
In a separate order, the court found that despite having time to file more
than 75 motions in federal and state court, Harbord had refused to confer in good
faith with Safeway about its discovery requests. The court also emphasized that
Harbord’s apparent belief that she was not subject to discovery rules was
incorrect.
On September 19, 2014, Safeway moved for summary judgment,
contending that Harbord had failed to submit any evidence supporting crucial
elements of her discrimination and wrongful termination claims. Safeway also
moved to dismiss the action as a sanction under CR 37(b) for Harbord’s ongoing
refusal to respond to discovery requests, her failure to appear for a deposition,
-6- No. 72731-1-1/7
and her refusal to comply with the court’s September 8 order compelling a
response to discovery requests.
Harbord did not comply with the order compelling discovery or file a
response addressing the merits of Safeway’s summary judgment motion.
Rather, she continued to file multiple documents insisting that she had no
obligation to comply with discovery rules and that she had a right to a jury trial.
See, ~ “an open refusal based on an assertion that no valid obligation exists
for discovery,” filed September 23, 2014; “Pro se Plaintiff did not agree with
summary judgment. . . Pro se has rights to go to trial,” filed September 25, 2014;
“Prose asks the court for new trial without Rule 26-37,” filed October 13, 2014;
and “Prose did not have any obligation for discovery,” filed October 21, 2014.
On October 24, 2014, the day of the summary judgment hearing, Harbord
filed several documents, including a purported declaration containing allegations
about her employment with Safeway. The trial court noted that the documents
were untimely, unsworn, lacked any declaration that they were made under
penalty of perjury, included irrelevant and inadmissible allegations, and contained
no admissible evidence that would create a material issue of fact. See CR 56(c).
At the conclusion of the hearing, the trial court granted Safeway’s motion
for summary judgment. In the alternative, the court dismissed Harbord’s claims
under CR 37(b) as a sanction for her complete failure to participate in discovery.
The court denied Harbord’s motion for reconsideration on November 18, 2014.
-7- No. 72731~1-I/8
Standard of Review
When reviewing a grant of summary judgment, an appellate court
undertakes the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d
434, 437, 656 P.2d 1030 (1982). We consider the evidence and the reasonable
inferences therefrom in the light most favorable to the nonmoving party. Schaaf
v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995). Summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” CR 56(c); White v. State, 131 Wn.2d 1, 9, 929
P.2d 396 (1997).
The moving party can satisfy its initial burden under CR 56 by
demonstrating the absence of evidence supporting the nonmoving party’s case.
Young v. Key Pharms., Inc., 112 Wn.2d 216, 225 n.1, 770 P.2d 182 (1989). The
burden then shifts to the nonmoving party to set forth specific facts
demonstrating a genuine issue for trial. Kendall v. Douglas, Grant, Lincoln &
Okanogan Counties Pub. Hosp. Dist. No. 6, 118 Wn.2d 1, 8-9, 820 P.2d 497
(1991).
Discriminatory and Retaliatory Discharge
Although Harbord makes no coherent legal argument on appeal, her
primary contention appears to be that Safeway fired her in violation of the WLAD.
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RCW 49.60.180(2) makes it unlawful for employers to discharge any person from
employment because of age, sex, marital status, race, creed, color, or national
origin.
In examining such claims, courts in Washington consider the three-part
burden of proof test established in McDonnell Douglas Corr. v. Green, 411 u.s. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See Hill v. BCTI Income Fund-I,
144 Wn.2d 172, 180, 23 P.3d 440 (2001), overruled on other grounds j~y
McClarty v. Totem Elec., 157 Wn.2d 214, 137 P.3d 844 (2006). First, the plaintiff
bears the burden of proving a prima facie case of discrimination. McDonnell
Douglas, 411 u.s. at 802. Second, if the plaintiff establishes a prima facie case,
the burden shifts to the defendant to articulate a legitimate, nondiscriminatory
reason for its action. McDonnell Douglas, 411 u.s. at 802. Third, if the
defendant satisfies this burden, the plaintiff must prove that the defendant’s
proffered reasons are, in fact, pretextual. McDonnell Douglas, 411 u.s. at 804. If the plaintiff fails to establish a prima facie case, the defendant is entitled to
summary judgment. Callahan v. Walla Walla Hous. Auth., 126 Wn. App. 812,
819, 110 P.3d 782 (2005).
The nature of a prima facie case necessarily depends on the particular
form of discrimination alleged. Generally, to establish a prima facie case of
discrimination, the plaintiff must demonstrate that he or she (1) is in a protected
class, (2) suffered an adverse employment action, (3) was doing satisfactory
-9- No. 72731-1 -1/10
work, and (4) was replaced by or treated differently than someone in a
nonprotected class. See Kirby v. City of Tacoma, 124 Wn. App. 454, 468, 98
P.3d 827 (2004), review denied, 154 Wn.2d 1007 (2005).
Safeway satisfied its initial burden on summary judgment by submitting
evidence that Harbord’s job performance had not been satisfactory for several
years. When the moving party has met its initial burden on summary judgment
by demonstrating the absence of evidence to support the nonmoving party’s
case, the nonmoving party
may not rely on the allegations in the pleadings but must set forth specific facts by affidavit or otherwise that show a genuine issue exists. Additionally, any such affidavit must be based on personal knowledge admissible at trial and not merely on conclusory allegations, speculative statements or argumentative assertions.
Las v. Yellow Front Stores, Inc., 66 Wn. App. 196, 198, 831 P.2d 744 (1992)
(footnote omitted).
In response to the motion for summary judgment, Harbord submitted no
admissible evidence supporting her claim of discriminatory discharge. Nor has
she identified any evidence in the record indicating that she was performing
satisfactory work or that Safeway acted in a manner supporting an inference of
discrimination.
Harbord’s appellate brief contains numerous conclusory factual allegations
about her employment at Safeway, none of which are supported by a reference
to admissible evidence in the record. See RAP 10.3(a)(5) (party must include
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reference to the record for each factual statement in brief); RAP 9.12 (when
reviewing order granting summary judgment, appellate court “will consider only
evidence and issues called to the attention of the trial court”). Although we are
mindful that Harbord is acting pro se, we will hold self-represented litigants to the
same standard as an attorney. In re Marriage of Olson, 69 Wn. App. 621, 626,
850 P.2d 527 (1993).
Because Harbord failed to establish a prima fade case of discrimination,
the trial court properly dismissed her claims on summary judgment.
Harbord’s complaint also alleged claims of retaliation and wrongful
discharge in violation of public policy.
To establish a prima facie case of retaliation under RCW 49.60.210(1), a
plaintiff must show that “(1) he or she engaged in statutorily protected activity, (2)
he or she suffered an adverse employment action, and (3) there was a causal
link between his or her activity and the other person’s adverse action.” Currier v.
Northland Servs., Inc., 182 Wn. App. 733, 742, 332 P.3d 1006 (2014), review
denied, 182 Wn.2d 1006 (2015). To prevail on a claim of wrongful discharge in
violation of public policy, the plaintiff must prove (1) the existence of a clear
public policy, (2) that discouraging the conduct in which the plaintiff engaged
would jeopardize the public policy, (3) that the plaintiff’s public-policy related
conduct caused the dismissal, and (4) that the defendant has not offered an
—11— No. 72731-1-1/12
overriding justification for the dismissal. Rickman v. Premera Blue Cross, 184
Wn.2d 300, 310, 358 P.3d 1153 (2015).
Because Harbord failed to identify any supporting evidence, the trial court
properly dismissed her claims of retaliation and wrongful termination in violation
of public policy on summary judgment.
Discovery Sanction
The trial court also dismissed Harbord’s claims as a sanction for her
complete refusal to participate in discovery. CR 37(b)(2) authorizes the trial court
to impose sanctions, including dismissal of the action, if a party fails to comply
with a court order compelling discovery. The trial court necessarily has broad
discretion in choosing sanctions for violation of a discovery order, and we will not
overturn the court’s ruling on appeal absent a manifest abuse of discretion.
Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997). The
trial court abuses its discretion if its ruling is “manifestly unreasonable, or
exercised on untenable grounds, or for untenable reasons.” Associated Mortq.
lnv’rs v. G.P. Kent Constr. Co., 15 Wn. App. 223, 229, 548 P.2d 558, review
denied, 87 Wn.2d 1006 (1976).
When imposing severe sanctions for violation of a discovery order, such
as dismissal, the trial court must consider, on the record, (1) whether the
discovery violation was willful, (2) whether the violation substantially prejudiced
the other party’s ability to prepare for trial, and (3) whether a lesser sanction
-12- No. 72731-1-1/13
would suffice. Burnet, 131 Wn.2d at 494. Here, the trial court expressly
considered all three factors, and the record supports the trial court’s
determination.
For nearly a year before the trial court entered the order compelling
discovery, Harbord refused to respond to any of Safeway’s discovery requests or
cooperate with Safeway’s attempts to schedule a deposition. In the September
8, 2014, order compelling discovery, the trial court warned Harbord that the
failure to comply could result in the dismissal of the action. The court also
expressly informed Harbord that she had no lawful basis for her apparent belief
that she was not subject to the discovery rules. But Harbord ignored the
discovery order and continued to flood the trial court, as she had throughout the
proceedings, with documents claiming that she had no obligation to comply with
the discovery rules. The record clearly establishes that Harbord’s failure to
comply with the discovery order was willful and deliberate. See Rivers v. Wash.
State Conf. of Mason Contractors, 145 Wn.2d 674, 686-87, 41 P.3d 1175 (2002)
(“A party’s disregard of a court order without reasonable excuse or justification is
deemed willful”).
Harbord’s failure to comply with the discovery order was also prejudicial.
Harbord provided no responses to Safeway’s discovery requests and refused to
schedule a deposition, severely limiting Safeway’s ability to make meaningful trial
preparations.
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The trial court expressly warned Harbord that she was subject to the
discovery rules and that the failure to comply with a court order could result in
dismissal. The court also awarded Safeway its reasonable expenses, including
attorney fees, for having to bring the motion to compel. Nonetheless, Harbord
ignored the trial court’s order and repeatedly denied any obligation to comply with
discovery rules. The record amply supports the trial court determination that a
lesser sanction was not sufficient.
The trial court did not abuse its discretion in dismissing Harbord’s action
as a sanction for violating the discovery order.
Remaining Issues
In her brief, Harbord asserts that Safeway filed a stipulated protective
order in federal court without her knowledge, that Safeway failed to serve all
documents by certified mail, and that she did not receive Safeway’s summary
judgment motion in a timely manner. But Harbord fails to support these
conclusory allegations with any legal arguments or citation to authority.
Accordingly, we decline to consider them. See Saunders v. Lloyd’s of London,
113 Wn.2d 330, 345, 779 P.2d 249 (1989) (appellate court will decline to
consider issues unsupported by cogent legal argument and citation to relevant
authority).
-14- No. 72731-1-1/15
Pending Motions
Harbord filed her notice of appeal on November 21 2014. On August 8,
2015, after multiple extensions of time, Harbord filed an untimely “preliminary
brief” which this court is treating as her opening brief. Despite several
extensions of time, Harbord failed to file a reply brief. Nonetheless, Harbord has
found time to file dozens of various documents and motions.
We have reviewed all of the documents that are briefly summarized in the
Appendix to this opinion. To the extent these filings can be construed as
motions, including motions to modify commissioners’ rulings, the motions are all
denied.
Attorney Fees on Appeal
Safeway requests an award of attorney fees for a frivolous appeal. See
RAP 18.9(a). An appeal is frivolous “if the appellate court is convinced that the
appeal presents no debatable issues upon which reasonable minds could differ
sand is so lacking in merit that there is no possibility of reversal.” In re Marriage of
Foley, 84 Wn. App. 839, 847, 930 P.2d 929 (1997). That standard is satisfied
here. Harbord’s complete failure to identify supporting evidence in the record or
present any meaningful legal argument addressing the summary judgment
standard and discovery sanctions precludes any arguable challenge to the trial
court’s decision. Safeway is awarded reasonable attorney fees on appeal,
subject to compliance with RAP 18.1(d).
-15- No. 72731-1-1/16
The motions identified in the appendix are denied. The trial court’s
dismissal of Harbord’s claims is affirmed.
c~ke~
WE CONCUR:
~
-16- No. 72731-1-1/17
APPENDIX
July 18, 2016 “Petition for my case Protest for Appeals Court.. June 23, 2016 Motion for Extension of Time to File Reply Brief
June 20, 2016 Motions for Extension of Time, Continuance, and/or Stay
June 17, 2016 Motions for Change of Venue, Japanese Translator, and Oral Argument June 10, 2016 Demand for Oral Argument and Translator
June 9, 2016 Objections to Commissioner’s May 31, 2016 Ruling June 7, 2016 Motion for Extension of Time to File Reply Brief
May 27, 2016 Motion for Sanctions and Continuance and Objection to Commissioner’s May 20, 2016 Ruling
May 24, 2016 Motion for Extension of Time to File Reply Brief and for Preliminary Injunction
May 20, 2016 Motion for Default
May 13, 2016 Petition Opposing Commissioner’s May 5, 2016 Ruling, Motion for Stay of Proceedings to Enforce Judgment, Motion for Translator, and Motion on the Merits
May 2, 2016 Opposition to Commissioner’s April 20, 2016 Ruling
-17- No. 72731-1-1/18
April 29, 2016 Objection to Commissioner April 20, 2016 Ruling
April 22, 2016 Motion Regarding Respondent’s Undelivered Brief, Motion for Extension of Time to File Reply Brief
April21, 2016 Motion to Correct Mistakes and Fraud
April 15, 2016 Objection to Commissioner’s April 6, 2016 Ruling, Motion to Strike
April 13, 2016 Filing Regarding Respondent’s Brief
April 5, 2016 Motions for Continuance, Correction of Clerical Mistakes, and Oral Argument
April 1, 2016 Motion for Fraud Against Counsel for Respondent
March 31, 2016 Motions for Due Process by Court of Appeals, Motion for Damages
March 25, 2016 Petition of Certified Questions, Opposition to Commissioner’s March 17, 2016 Ruling, Intervention by State Constitutional Question
March 11,2016 Motion for Sanctions
March 4, 2016 Motion for Preliminary Injunction
February 29, 2016 Motion for Preliminary Injunctions
February 26, 2016 Petition Alleging Bias and Prejudice
February 23, 2016 Notice of Intent to File Amicus Brief
February 8, 2016 Motion for Relief from Proceeding
February 3, 2016 Objection to Receiving Court of Appeals’ Orders in Two Appeals on the Same Day
-18-