F_P!- iD CO'WIJ OF APPEALS DIVIS110p if 2013 DEC 17 AN 8: 50
IN THE COURT OF APPEALS OF THE STATE OF WASH
DIVISION II
PAULA JONES, No. 43975 -1 - I]
Appellant,
V.
GRAYS HARBOR COUNTY, a municipal UNPUBLISHED OPINION corporation, organized and existing under the laws of the State of Washington; ALBERT CARTER; BOB BEERBOWER; MIKE WILSON; ROD EASTON; MARILYN LEWIS; MARSHA WHITAKER; CLAUDIA SELF; and TERESA OLSON,
ondents.
JOHANSON, A.C. J. — Paula Jones appeals the superior .court' s summary dismissal of her
action against Grays Harbor County for wrongful termination in violation of public policy. She-
asserts that her case met all the requirements for the tort under Washington law. She also argues
that the superior court erred by denying her motion to strike the County' s untimely rebuttal
documents and denying her motion to continue the summary judgment hearing.' We hold that
1) Jones failed to provide a sufficient record to review whether the trial court erred by denying
her motion to strike, ( 2) Jones abandoned her request for a continuance, and ( 3) the record is
Jones expressly abandons her other arguments in her reply brief and we consider them no further. No. 43975 -1 - II
insufficient as a matter of law to show a nexus between Jones' s report regarding Dave Percell' s
conduct and her termination. We affirm.
FACTS
Jones was employed for several years with the Grays Harbor County Fair Board,
including serving as acting director. She alleged that on August 17, 2007, Persell, a board of
directors member for the fair, came into the fair office very angry after a miscommunication
between them regarding delivery of a piece of equipment. According to Jones, Persell
approached her, yelled at her at such a close distance that he spat on her face, shoved a piece of
paper in her face, repeatedly demanded that she explain why she had called him a liar, and stood
over her while yelling at her with bulging eyes and a red face. Jones feared that Persell would hit
her because his tone was very threatening and aggressive; and when he finally left, all the
women in the office began to cry. A police report was filed and Jones told her supervisor that
she no longer felt safe being around or working with Persell. Persell resigned from the. fair board
on October 11, 2007. Sixteen months after Jones' s confrontation with Persell, the .County
terminated Jones from her employment effective December 31, 2008.
In January 2011, Jones filed a complaint against the County, several County
commissioners, and several of her former supervisors and co- workers in their individual
capacities. Jones pleaded claims for defamation, retaliation, race discrimination/ disparate
treatment, gender discrimination/ hostile work environment, and wrongful termination in
violation of public policy; but only the latter wrongful termination is at issue here.
In July 2012, the County moved for summary judgment, seeking dismissal of all of
Jones' s claims. Jones responded that the County had wrongfully terminated her after she stood
2 No. 43975 -1 - II
up to Persell. She explained that Persell assaulted her on the job, the County wrongfully
terminated her for reporting Persell' s assault, her termination created a chilling effect among
other County employees, and the County violated clear public policy in firing her because
employees should feel safe and comfortable reporting assaults at work.
The day before the summary judgment hearing, the County filed rebuttal documents in
reply to Jones' s response. The County argued that Jones had failed to timely file her responsive
documents and that her responsive documents still failed to create any genuine issue of material
fact. A clerk' s notation from the summary judgment hearing shows that Jones asked the court to
strike the County' s untimely rebuttal documents, asked for a continuance, but then agreed to
proceed with the summary judgment hearing. The superior court eventually granted summary
judgment and dismissed all of Jones' s claims. Jones appeals the superior court' s order granting 2 summary dismissal of her wrongful discharge claim.
ANALYSIS
I. MOTIONS TO STRIKE AND TO CONTINUE
First, Jones argues that the superior court erred by denying her motion to strike the
County' s untimely rebuttal documents in support of summary judgment. She argues that the
superior court, in the alternative, should have granted her motion to continue the summary
judgment hearing to give her time to prepare. Her arguments fail.
The appellant has the burden of providing a sufficient record to review issues raised on
appeal. Story v. Shelter Bay Co., 52 Wn. App. 334, 345, 760 P. 2d 368 ( 1988). Jones relies
2 In her reply brief, Jones abandons her other claims and asks us to focus solely on her wrongful discharge in violation of public policy claim.
3 No. 43975 -1 - II
solely on clerk' s notations that reflect merely that Jones asked the court to strike the County' s
rebuttal filings, asked for a continuance, and then agreed to proceed. Our record does not
contain written motions from Jones or the transcript from the summary judgment hearing to
explain what Jones' s motions were based upon or supported by. Therefore, here the record is
incomplete and gives us nothing to review. Because Jones has the burden of providing a
sufficient record for us to review issues she raises on appeal and because she has not done so, her
arguments fail. Finally, because the summary judgment hearing record shows that Jones
abandoned her request for a continuance, there is no trial court continuance decision for us to
review.
II. SUMMARY JUDGMENT
Next, Jones argues that the superior court erroneously dismissed her claim for wrongful
termination in violation of public policy because her claim satisfied all the elements under the
test laid out in Korslund v. DynCorp Tri- Cities Servs., Inc., 156 Wn.2d 168, 178, 125 P. 3d 119
2005). We disagree.
A. Standard of Review and Rules of Law
When reviewing an order for summary judgment, we engage in the same inquiry as the
trial court. Mountain Park Homeowners Ass' n v. Tydings, 125 Wn.2d 337, 341, 883 P. 2d 1383
1994). We will affirm summary judgment if no genuine issue of any material fact exists and the
moving party is entitled to judgment as a matter of law. CR 56( c). All facts and reasonable
inferences are considered in the light most favorable to the nonmoving party, and all questions of
law are reviewed de novo. Berrocal v. Fernandez, 155 Wn.2d 585, 590, 121 P. 3d 82 ( 2005).
M No. 43975- 1- 11
In Washington, an employer generally may terminate employment of indefinite duration
with or without cause. Bulman v. Safeway, Inc., 144 Wn.2d 335, 340, 27 P. 3d 1172 ( 2001).
Wrongful discharge in violation of public policy is an intentional tort and a narrow exception to
the termination - at -will employment relationship; courts must proceed with caution. Worley v.
Providence Physician Servs. Co., 175 Wn. App. 566, 573, 307 P. 3d 759 ( 2013). Our Supreme
Court has recognized a public policy tort claim in four areas: "`( 1) where the discharge was a
result of refusing to commit an illegal act, ( 2) where the discharge resulted due to the employee
Free access — add to your briefcase to read the full text and ask questions with AI
F_P!- iD CO'WIJ OF APPEALS DIVIS110p if 2013 DEC 17 AN 8: 50
IN THE COURT OF APPEALS OF THE STATE OF WASH
DIVISION II
PAULA JONES, No. 43975 -1 - I]
Appellant,
V.
GRAYS HARBOR COUNTY, a municipal UNPUBLISHED OPINION corporation, organized and existing under the laws of the State of Washington; ALBERT CARTER; BOB BEERBOWER; MIKE WILSON; ROD EASTON; MARILYN LEWIS; MARSHA WHITAKER; CLAUDIA SELF; and TERESA OLSON,
ondents.
JOHANSON, A.C. J. — Paula Jones appeals the superior .court' s summary dismissal of her
action against Grays Harbor County for wrongful termination in violation of public policy. She-
asserts that her case met all the requirements for the tort under Washington law. She also argues
that the superior court erred by denying her motion to strike the County' s untimely rebuttal
documents and denying her motion to continue the summary judgment hearing.' We hold that
1) Jones failed to provide a sufficient record to review whether the trial court erred by denying
her motion to strike, ( 2) Jones abandoned her request for a continuance, and ( 3) the record is
Jones expressly abandons her other arguments in her reply brief and we consider them no further. No. 43975 -1 - II
insufficient as a matter of law to show a nexus between Jones' s report regarding Dave Percell' s
conduct and her termination. We affirm.
FACTS
Jones was employed for several years with the Grays Harbor County Fair Board,
including serving as acting director. She alleged that on August 17, 2007, Persell, a board of
directors member for the fair, came into the fair office very angry after a miscommunication
between them regarding delivery of a piece of equipment. According to Jones, Persell
approached her, yelled at her at such a close distance that he spat on her face, shoved a piece of
paper in her face, repeatedly demanded that she explain why she had called him a liar, and stood
over her while yelling at her with bulging eyes and a red face. Jones feared that Persell would hit
her because his tone was very threatening and aggressive; and when he finally left, all the
women in the office began to cry. A police report was filed and Jones told her supervisor that
she no longer felt safe being around or working with Persell. Persell resigned from the. fair board
on October 11, 2007. Sixteen months after Jones' s confrontation with Persell, the .County
terminated Jones from her employment effective December 31, 2008.
In January 2011, Jones filed a complaint against the County, several County
commissioners, and several of her former supervisors and co- workers in their individual
capacities. Jones pleaded claims for defamation, retaliation, race discrimination/ disparate
treatment, gender discrimination/ hostile work environment, and wrongful termination in
violation of public policy; but only the latter wrongful termination is at issue here.
In July 2012, the County moved for summary judgment, seeking dismissal of all of
Jones' s claims. Jones responded that the County had wrongfully terminated her after she stood
2 No. 43975 -1 - II
up to Persell. She explained that Persell assaulted her on the job, the County wrongfully
terminated her for reporting Persell' s assault, her termination created a chilling effect among
other County employees, and the County violated clear public policy in firing her because
employees should feel safe and comfortable reporting assaults at work.
The day before the summary judgment hearing, the County filed rebuttal documents in
reply to Jones' s response. The County argued that Jones had failed to timely file her responsive
documents and that her responsive documents still failed to create any genuine issue of material
fact. A clerk' s notation from the summary judgment hearing shows that Jones asked the court to
strike the County' s untimely rebuttal documents, asked for a continuance, but then agreed to
proceed with the summary judgment hearing. The superior court eventually granted summary
judgment and dismissed all of Jones' s claims. Jones appeals the superior court' s order granting 2 summary dismissal of her wrongful discharge claim.
ANALYSIS
I. MOTIONS TO STRIKE AND TO CONTINUE
First, Jones argues that the superior court erred by denying her motion to strike the
County' s untimely rebuttal documents in support of summary judgment. She argues that the
superior court, in the alternative, should have granted her motion to continue the summary
judgment hearing to give her time to prepare. Her arguments fail.
The appellant has the burden of providing a sufficient record to review issues raised on
appeal. Story v. Shelter Bay Co., 52 Wn. App. 334, 345, 760 P. 2d 368 ( 1988). Jones relies
2 In her reply brief, Jones abandons her other claims and asks us to focus solely on her wrongful discharge in violation of public policy claim.
3 No. 43975 -1 - II
solely on clerk' s notations that reflect merely that Jones asked the court to strike the County' s
rebuttal filings, asked for a continuance, and then agreed to proceed. Our record does not
contain written motions from Jones or the transcript from the summary judgment hearing to
explain what Jones' s motions were based upon or supported by. Therefore, here the record is
incomplete and gives us nothing to review. Because Jones has the burden of providing a
sufficient record for us to review issues she raises on appeal and because she has not done so, her
arguments fail. Finally, because the summary judgment hearing record shows that Jones
abandoned her request for a continuance, there is no trial court continuance decision for us to
review.
II. SUMMARY JUDGMENT
Next, Jones argues that the superior court erroneously dismissed her claim for wrongful
termination in violation of public policy because her claim satisfied all the elements under the
test laid out in Korslund v. DynCorp Tri- Cities Servs., Inc., 156 Wn.2d 168, 178, 125 P. 3d 119
2005). We disagree.
A. Standard of Review and Rules of Law
When reviewing an order for summary judgment, we engage in the same inquiry as the
trial court. Mountain Park Homeowners Ass' n v. Tydings, 125 Wn.2d 337, 341, 883 P. 2d 1383
1994). We will affirm summary judgment if no genuine issue of any material fact exists and the
moving party is entitled to judgment as a matter of law. CR 56( c). All facts and reasonable
inferences are considered in the light most favorable to the nonmoving party, and all questions of
law are reviewed de novo. Berrocal v. Fernandez, 155 Wn.2d 585, 590, 121 P. 3d 82 ( 2005).
M No. 43975- 1- 11
In Washington, an employer generally may terminate employment of indefinite duration
with or without cause. Bulman v. Safeway, Inc., 144 Wn.2d 335, 340, 27 P. 3d 1172 ( 2001).
Wrongful discharge in violation of public policy is an intentional tort and a narrow exception to
the termination - at -will employment relationship; courts must proceed with caution. Worley v.
Providence Physician Servs. Co., 175 Wn. App. 566, 573, 307 P. 3d 759 ( 2013). Our Supreme
Court has recognized a public policy tort claim in four areas: "`( 1) where the discharge was a
result of refusing to commit an illegal act, ( 2) where the discharge resulted due to the employee
performing a public duty or obligation, ( 3) where the [ discharge] resulted because the employee
exercised a legal right or privilege, and ( 4) where the discharge was premised on employee
whistleblowing" activity. "' Piel v. City ofFederal Way, 177 Wn.2d 604, 609 -10, 306 P. 3d 879
2013) ( quoting Dicomes v. State, 113 Wn.2d 612, 618, 782 P. 2d 1002 ( 1989) ( citations
omitted)).
This tort has four elements and the plaintiff must show that each element is satisfied in
order to prevail:
1) The plaintiffs must prove the existence of a clear public policy ( the clarity element).
2) The plaintiffs must prove that discouraging the conduct in which they engaged would jeopardize the public policy (the jeopardy element). 3) The plaintiffs must prove that the public-policy-linked. conduct caused the dismissal (the causation element). 4) The defendant must not be able to offer an overriding justification for the dismissal (the absence of justification element)."
Worley, 175 Wn. App. at 573 ( quoting Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 941,
913 P. 2d 377 ( 1996) ( emphasis omitted) ( citations omitted)). Assuming, without deciding, the
E No. 43975 -1 - II
existence of the other elements, we exercise our discretion to examine only the third element
regarding causation.
B. Causation Element
Under the causation element, a plaintiff must show that public - policy - linked conduct
actually caused termination of employment. Gardner, 128 Wn.2d at 941. Because wrongful
discharge in violation of public policy is an intentional tort, the plaintiff must establish wrongful
intent to discharge. Korslund, 156 Wn.2d at 178. There must be sufficient evidence of a nexus
between the discharge and the alleged policy violation. Havens v. C &D Plastics, Inc., 124
Wn.2d 158, 179, 876 P. 2d 435 ( 1994). Although issues of causation are usually questions of fact
not generally susceptible to summary judgment, we may determine causation as a matter of law
when reasonable minds can reach but one conclusion. Miller v. Likins, 109 Wn. App. 140, 144,
34 P. 3d 835 ( 2001).
Jones' s only assertion that arguably supports the causation element is that one County
commissioner testified during depositions that the only example he could remember of
something Jones had done wrong was the " Persell incident." Br. of Appellant at 10. But Jones
fails to explain how this testimony establishes the required nexus. Further, she fails to address
the timeline of events: the " Persell incident" occurred in the summer of 2007; and the County
terminated Jones in December 2008, some 16 months after the incident with Persell. Jones does
G No. 43975 -1 - II
not cite any Washington case where an event occurring over a year prior to termination has 3 satisfied the causation element for wrongful discharge in violation of public policy.
In addition, Jones presents no other evidence of causation nor does she make substantial
argument that her complaints to the County and to the police regarding Persell' s conduct were 4 the cause of her termination. Further, Jones cannot show wrongful intent to discharge because
she does not explain why the County' s proffered reasons for her termination did not actually
cause her termination. The County explained that it terminated Jones because of her poor
management skills, poor communication, and a lack of professionalism and ability to do the job.
Jones does explain why these reasons could not have been the cause of her termination. Instead
she relies on bare allegations that the County' s only reason for terminating her was that she stood
up to Persell after he assaulted her on the job. But bare allegations regarding the causation nexus
are insufficient to avoid summary judgment. Even when reviewed in the light most favorable to
Jones, the evidence is insufficient here to meet her burden. Reasonable minds can reach but one ,
conclusion here — that Jones has not shown on the record before us, sufficient evidence of a nexus
between her employment termination and any alleged public policy violation. Therefore she has
not met the causation element for the tort of wrongful termination in violation of public policy,
3 Instead, in her reply, she cites federal case law from the Sixth Circuit arguing that courts have never suggested that 15 months is too long to establish causation. But we are not bound by Sixth Circuit cases and we are not persuaded.
4 Jones makes additional assertions heading, " The Causation Element in her reply under the Exists." Reply Br. of Appellant at 8. But the purpose of a reply brief is to respond to the respondent' s arguments and not to raise new arguments that were not adequately addressed in the appellant' s opening brief. RAP 10. 3( c).
VA No. 43975 -1 - II
her claim fails, and we do not address the remaining elements. Worley, 175 Wn. App. at 573.
We hold that the superior court did not err in dismissing this claim.
We affirm.
ATTORNEY FEES
Jones' s request for attorney fees does not comply with RAP 18. 1. And because she is not
the prevailing party she is not entitled to attorney fees. RAP 18. 1.
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.
C
Johanson,