IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STEPHEN C. SIMMONS, No. 72836-9-1
Appellant,
v.
STATE OF WASHINGTON, UNPUBLISHED OPINION « 5S?g
Respondent. FILED: June 1,2015 T °^V 3am COrri' " or 5>o Verellen, A.C.J. — Stephen Simmons appeals the summary judgment 5 z~ — o2 dismissing his disparate treatment claims. Simmons contends that he was not^?vepp;< regular performance reviews and that an individual supervisor applied a more rigorous
pay raise standard to him than to others. But Simmons does not establish that his lack
of regular performance reviews resulted in any adverse employment consequence, he
does not establish "comparators" required for a disparate treatment pay raise claim, and
he does not rebut the Department of Social and Health Services's (DSHS) legitimate,
nondiscriminatory reasons for his pay raises with evidence of pretext. Under the well-
defined standards for employment discrimination claims, Simmons fails to establish a
genuine issue of material fact warranting a trial. We affirm.
FACTS
Simmons, an African American, works within DSHS's Enterprise Risk
Management Office. He holds a Washington Management Service (WMS) position as a
risk management administrator, managing tort lawsuits filed against DSHS. Each WMS No. 72836-9-1/2
position has a salary range (a "band"). Simmons's position is in Band 2 with a salary
range of $61,200 to $81,600. His current salary is $76,932.
Bernie Friedman supervised Simmons from 2001 to 2006. Friedman did not give
Simmons any performance reviews. Simmons received a 5 percent raise in January
2002 and another raise in 2004. The size of the 2004 raise is unclear from the record.
Liz Dunbar supervised Simmons in 2006. Dunbar gave Simmons his first
performance review and a "lump sum payment" of $12,000.1 Simmons could not recall,
and the record is unclear, if he also received a raise after his performance review with
Dunbar.
Joe Olson supervised Simmons in 2007. Olson did not give Simmons a
performance review, and Simmons did not receive a raise.
Kevin Krueger supervised Simmons from April 2008 to October 2010. Krueger
gave Simmons a performance review in 2008 and recommended a 3 percent raise for
Simmons. Krueger testified that Simmons "was the only one during that period [in 2008]
that I was advocating for a salary increase" because other employees, such as Kristal
Wiitala and Kevin Doty, had previously received raises.2 Krueger reviewed Simmons's
pay history and learned that he had not had a raise since 2006. Krueger recommended
a 3 percent raise that would "bring him up" even with Kristal Wiitala and Kevin Doty.3
When asked if there was any other reason he did not give Simmons a 5 percent raise,
Krueger testified:
1 Clerk's Papers (CP) at 127. 2 CP at 1000. 3 CP at 1163. No. 72836-9-1/3
Because I found his performance, while it was excellent, I think he was ~ there wasn't anything extraordinary. And I looked at the criteria that we went over in the other document, and it looked like he was doing his job. I asked him, "Was there anything extraordinary or different or something unusual that was different?"
I was looking for Steven [sic] to help me answer that question, what it was, if there was some unique case or anything, and he wouldn't provide me the information.[A]
Simmons rejected the raise and refused to sign the performance review form.
Krueger did not process the raise. Krueger has not been able to locate a copy of the
2008 performance review. The trial court determined it would "draw an adverse
inference" against DSHS for not producing Simmons's 2008 performance evaluation.5
To the extent the trial court was prepared to draw an adverse inference from the
missing document, we draw the "adverse inference" that Simmons's 2008 performance
review was positive.
In October 2010, DSHS implemented the 3 percent raise retroactive to 2008.
Regulations and administrative policies provide for regular performance reviews
of DSHS permanent employees. But performance reviews do "not always happen[,] for
a variety of reasons."6 Krueger did not give Simmons a performance review in 2009 or
2010. Some, but not all, of the Enterprise Risk Management Office's employees
received regular performance reviews.
A salary freeze on WMS employees prohibited Krueger from recommending a
raise for any WMS employee reporting to him from November 2008 to June 2013
4 CP at 104 (emphasis added). 5 CP at 779. 6CPat19. No. 72836-9-1/4
except for Simmons, who received 3 percent in 2008, and Sherri Jenkins, who received
5 percent in 2013. Jenkins's 5 percent raise in 2013 was due to her increased job
duties and a redesignation to Band 2. Nadine Selene-Hait received a 7.5 percent
retention raise, over Krueger's objection, in 2011.
Simmons contends that several DSHS employees are comparators.
Stephen Dotson, a licensed attorney, worked as Discovery Manager. He
negotiated his starting salary at $78,000, at the top of the Band 2 range, based upon his
prior litigation and public disclosure experience. Wiitala gave Dotson a performance
review in 2009, and Krueger gave him performance reviews in 2010 and 2011.
Kevin Doty is the Internal Control and Insurance Manager, a Band 2 position.
Doty received four performance reviews.
Mark Greene worked as the Safety and Claims Program Manager. Greene
negotiated his starting salary of $78,000, at the top of the Band 2 range. He "was very
highly regarded," "had a strong background in safety," and "interviewed extremely
well."7 Greene did not receive a performance review because he was hired in 2008 and
retired in 2009.
Sherri Jenkins is the Public Disclosure Manager. She received a 5 percent raise
in May 2013 when DSHS redesignated her position to Band 2.
Nadine Selene-Hait is the Operations Manager, a Band 2 position. Krueger gave
her three performance reviews. She received a 7.5 percent retention raise in 2011.
Kristal Wiitala, a licensed attorney, is the Public Records/Privacy Officer. DSHS
redesignated her position to Band 3 in 2004. She received 5 percent raises and
7 CP at 27. No. 72836-9-1/5
apparently received performance reviews in 2002, 2004, and 2006 (pre-Krueger).
Krueger apparently gave her two performance reviews sometime after 2007.
Simmons filed an internal racial discrimination complaint against DSHS and
Kevin Krueger. DSHS investigated Simmons's allegations, but did not find any violation
of DSHS's nondiscrimination policies. DSHS later assigned Tracy Guerin to supervise
Simmons. Guerin gave Simmons an excellent rating in a 2012 performance review.
Simmons sued DSHS for employment discrimination. He asserted multiple racial
discrimination claims under chapter 49.60 RCW. The superior court granted DSHS
partial summary judgment. Per Simmons's request, the superior court nonsuited the
only claim remaining after granting DSHS partial summary judgment.
Simmons appeals.
ANALYSIS
We review a partial summary judgment order de novo, viewing the facts and all
reasonable inferences in the light most favorable to the nonmoving party.8 Summary
judgment is proper if no genuine issues of material fact exist.9 "A material fact is one that affects the outcome of the litigation."10 "We may affirm the superior court's
summary judgment decision on any ground supported by the record."11
8 Fulton v. State. Dep't of Soc. & Health Servs.. 169 Wn. App. 137, 147, 279 P.3d 500(2012). 9 CR 56(c); Lowman v. Wilbur. 178 Wn.2d 165, 168-69, 309 P.3d 387 (2013) (quoting Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794-95, 64 P.3d 22 (2003)). 10 Owen v. Burlington N. & Santa Fe R.R. Co.. 153 Wn.2d 780, 789, 108 P.3d 1220(2005). 11 Pacific Marine Ins. Co. v. State. Dep't of Revenue. 181 Wn. App. 730, 737, 329 P.3d 101 (2014). No. 72836-9-1/6
RCW 49.60.180 prohibits employment discrimination based on race. An
employer may not "discriminate against any person in compensation or in other terms or
conditions of employment" based on a protected trait, such as race.12 At trial, the
employee "must ultimately prove that [the protected trait] was a 'substantial factor' in an
employer's adverse employment action."13 A "substantial factor" means that the
protected trait "was a significant motivating factor bringing about the employer's
decision," not that the protected trait was the only factor in the decision.14
"[S]ummary judgment to an employer is seldom appropriate" in employment
discrimination cases.15 To overcome summary judgment, a plaintiff need only show
"that a reasonable jury could find that the plaintiff's protected trait was a substantial
factor motivating the employer's adverse actions."16 "This is a burden of production, not
persuasion, and may be proved through direct or circumstantial evidence."17
We apply the McDonnell Douglas Corp. v. Green18 burden shifting framework to
employment discrimination cases based on circumstantial evidence.19 Because
Washington discrimination laws substantially parallel Title VII of the Civil Rights Act of
1964, we may look to federal law for guidance.20 Under the McDonnell Douglas
2 RCW 49.60.180(3). 3 Scrivener v.Clark Coll.. 181 Wn.2d 439, 444, 334 P.3d 541 (2014). 4id, 5 Id, at 445.
7 Riehl v. Foodmaker. Inc.. 152 Wn.2d 138, 149, 94 P.3d 930 (2004). 8 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). 9 Hill v. BCTI Income Fund-I. 144Wn.2d172, 180, 23 P.3d 440 (2001), overruled on other grounds by McClartv v. Totem Elec. 157Wn.2d214, 137 P.3d 844 (2006). No. 72836-9-1/7
framework, the burden of persuasion, at all times, remains with the employee; only the
burden of production shifts.21
The employee must first establish a prima facie case of discrimination.22 The
"prima facie burden is 'not onerous.'"23 A minimal evidentiary showing is enough and
"'does not even need to rise to the level of a preponderance of the evidence.'"24 But the
employee "must do more than express an opinion or make conclusory statements."25
The employee must establish "specific and material facts to support each element of his
or her prima facie case."26 If the employee fails to establish a prima facie case, the
employer is entitled to summary judgment.
Once the employee establishes a prima facie case, the burden then shifts to the
employer to articulate a legitimate, nondiscriminatory reason for the alleged adverse
employment action.27 If the employer provides a legitimate, nondiscriminatory reason,
the burden shifts back to the employee to produce evidence that the employer's
20 Kumar v. Gate Gourmet Inc.. 180 Wn.2d 481, 490, 325 P.3d 193(2014). 21 Reeves v. Sanderson Plumbing Prods.. Inc.. 530 U.S. 133, 142, 120 S. Ct. 2097, 147 L Ed. 2d 105(2000). 22 Hill, 144Wn.2dat181. 23 Fulton. 169 Wn. App. at 152 (quoting Texas Dep't of Cmtv. Affairs v. Burdine. 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L Ed. 2d 207 (1981)). 24 jd, (quoting Wallisv. J.R. SimplotCo.. 26 F.3d 885, 889 (9th Cir.1994)). 25 Hiatt v. Walker Chevrolet Co.. 120 Wn.2d 57, 66, 837 P.2d 618 (1992). 26 jd. (emphasis omitted). 27 Hill, 144Wn.2dat181. No. 72836-9-1/8
articulated reason for the employment action was a pretext.28 But ifthe employee fails
to meet this burden, the employer is entitled to summary judgment.29
"Evidence is sufficient to overcome summary judgment if it creates a genuine
issue of material fact that the employer's articulated reason was a pretext for a
discriminatory purpose."30 "An employee may satisfy the pretext prong by offering
sufficient evidence to create a genuine issue of material fact either (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."31
"An employee does not need to disprove each of the employer's articulated
reasons to satisfythe pretext burden of production."32 "[I]t is the plaintiffs burden at trial
to prove that discrimination was a substantial factor in an adverse employment action,
not the only motivating factor."33 "An employer may be motivated by multiple purposes,
both legitimate and illegitimate, when making employment decisions and still be liable"
under chapter 49.60 RCW.34
28 IdL at 182. 29 Johnson v. Dep't of Soc. And Health Servs.. 80 Wn. App. 212, 227, 907 P.2d 1223(1996). 30 Scrivener. 181 Wn.2dat446. 31 ]d, at 446-47. 32 id, at 447 (emphasis omitted). 33 id, 34 Id. No. 72836-9-1/9
"If the [employee] satisfies the McDonnell Douglas burden of production
requirements, the case proceeds to trial, unless the judge determines that no rational
fact finder could conclude that the action was discriminatory."35
Performance Reviews
Simmons first contends summary judgment was improper because he
established a prima facie claim of disparate treatment. Specifically, he contends DSHS
treated him differently than similarly situated employees because he received fewer
performance reviews. But Simmons did not suffer an adverse employment action
amounting to a "tangible impact" on his workload or pay.
To establish a prima facie case of racial discrimination based on disparate
treatment, the employee must show his employer treats some people less favorably
than others based on their race.36 The primary inquiry is whether the employee's
circumstantial evidence is sufficient to create an inference that the employer's decision
was based on race.37 In other words, liability depends on whether the protected trait
motivated the employer's decision. And that decision must result in an adverse
employment action The employee must show that (1) he belongs to a protected class,
(2) he and the nonprotected, similarly situated employee, or comparator, did
substantially the same work, (3) he was treated less favorably in his employment than a
comparator, and (4) he suffered an adverse employment action.38
35 id, at 446. 36 Domingo v. Boeing Emps. Credit Union. 124 Wn. App. 71, 81, 98 P.3d 1222 (2004); Johnson. 80 Wn. App. at 227. 37 LlNDEMANN, BARBARA T., GROSSMAN, PAUL & WEIRICH, C. GEOFFREY, Employment Discrimination Law, at 2-24 to -25 (5th ed. 2012). 38 Domingo. 124 Wn. App. at 81. No. 72836-9-1/10
The elements of a prima facie case are not absolute but vary based on the
relevant facts.39 "Some courts treat the requirement that the job action be adverse as
part of the prima facie case."40 We agree.
The parties here do not dispute the first two prongs. Simmons is a member of a
protected class.41 DSHS concedes that Simmons's colleagues—Dotson, Doty, Greene,
Jenkins, Selene-Hait, and Wiitala—"were similarly situated to Mr. Simmons" only for
performance reviews.42
For the third prong, Simmons received fewer performance reviews than others.
Dotson (3), Doty (4), Selene-Hait (3), and Wiitala (5) all received more performance
reviews than Simmons.43 But a disparate-treatment claim also requires "'an actual
adverse employment action, such as a demotion or adverse transfer.'"44
"Not every employment decision amounts to an adverse employment action,"
even decisions that negatively impact an employee.45 An adverse employment action is
generally limited to tangible employment actions that constitute a "significant change in
39 Burdine. 450 U.S. at 253; McDonnell Douglas. 411 U.S. at 802; Grimwood v. Univ. of Puget Sound. Inc.. 110 Wn.2d 355, 363, 753 P.2d 517 (1988). 40 Lindemann, supra, at 2-21 to -22. 41 CP at 8; McDaniels v. Grp. Health Coop.. No. C13-1689JLR, 2014 WL 5471991, at *8 (W.D. Wash. 2014); Domingo, 124 Wn. App. at 81. 42 Respondent's Br. at 2. 43 While Greene received fewer performance reviews than Simmons, he only worked one year for DSHS and then retired. The record is unclear how many performance reviews Jenkins received. 44 Kirbvv.CitvofTacoma, 124 Wn. App. 454, 465, 98 P.3d 827 (2004) (quoting Robelv. Roundup Corp.. 148 Wn.2d 35, 74 n.24, 59 P.3d 611 (2002)). 45 Strotherv. S. Cal. Permanente Med. Grp.. 79 F.3d 859, 869 (9th Cir. 1996); Huddleston v. Sunshine Mills. Inc., 965 F. Supp. 2d 1298, 1312 (N.D. Ala. 2013).
10 No. 72836-9-1/11
employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in
benefits."46 An adverse employment action "must involve a change in employment
conditions that is more than an 'inconvenience or alteration of job responsibilities'"47 and
must produce "'a material employment disadvantage.'"48
No evidence suggests Simmons suffered any harm from DSHS's failure to
provide him as many performance reviews as his comparators. Apart from a 3 percent
temporary salary reduction for all DSHS employees, Simmons's salary was never
reduced, he was never demoted or adversely transferred, his employment conditions or
privileges never changed, and he was not denied a position within or outside DSHS.
Simmons claims the lack of regular performance reviews constitutes an adverse
employment action because it led to reduced career growth and an inferior salary. The
record here does not support his contention. Simmons's declaration is limited to
generalities about his comparators obtaining promotions because of regular
performance reviews.49 But these generalities do not support a reasonable inference
46 Burlington Indus.. Inc. v. Ellerth. 524 U.S. 742, 761, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998). 47 Kirbv. 124 Wn. App. at 465 (quoting DeGuiseppe v. Vill. of Bellwood. 68 F.3d 187, 192 (7th Cir. 1995)); see also Alonso v. Qwest Commc'ns Co.. LLC. 178 Wn. App. 734, 746, 315 P.3d 610 (2013) (an adverse employment action must involve "a change in employment conditions," such as "reducing an employee's workload and pay"). 48 Higgins v. Gonzalez. 481 F.3d 578, 584 (8th Cir. 2007) (quoting Kerns v. Capital Graphics. Inc.. 178 F.3d 1011, 1016-17 (8th Cir. 1999)), abrogated on other grounds by Torgeson v. City of Rochester. 643 F.3d 1031 (8th Cir. 2011). 49 See, e.g.. CP at 127 ("These performance reviews and development plans are precursors to advancement and pay raises."); CP at 131 ("Krueger's retaliation and withholding the original 2008 raise until October 12, 2010 is also actionable and compensable in the form of lost opportunity costs and interest on the withheld salary."); CP at 139 ("The absence of the regular reviews and performance plans curtailed my
11 No. 72836-9-1/12
that the lack of regular performance reviews impacted his opportunities for career
growth.
Simmons relies upon Kirbv v. City of Tacoma. which held that the employer's
failure to promote the employee to captain had a "tangible impact" on the employee's
"workload or pay" because the employee had actually applied for that position.50 But
unlike in Kirbv. Simmons provides no evidence that his lack of regular performance
reviews caused a tangible impact on his career growth. His claims of a hypothetical
impact on opportunities for career growth are inadequate.
Simmons also claims the lack of regular performance reviews negatively
impacted his raises, but the record does not support a correlation between performance
reviews and raises. For example, Selene-Hait received a 7.5 percent retention raise in
2011, and Jenkins received a 5 percent raise in 2013. But no evidence suggests these
raises were attributed to more performance reviews. Dotson and Selene-Hait received
job offers from other government departments. But no evidence suggests the number
of performance reviews in their files contributed to the job offers. Further, Doty's
performance reviews occurred after his raise in 2007. While Dotson received three
performance reviews, he never received a raise. Because neither Simmons nor any
other WMS employee could receive a raise from November 2008 to June 2013 for
"growth and development," Simmons could not have been denied a raise during that
time period for missed performance reviews.
ability to ascend in the agency in the future."); CP at 141 ("Within DSHS, "excellent" non-minority employees that are provided performance reviews flourish."). 50 124 Wn. App. 454, 465, 98 P.3d 827 (2004).
12 No. 72836-9-1/13
In sum, on this record, receiving fewer performance reviews did not constitute a
"significant change in employment status"51 or a "change in employment conditions."52
Simmons has not shown the lack of regular performance reviews led to a change in
employment conditions or status.53 The failure to issue as many performance reviews
as his comparators does not by itself constitute an adverse employment action.
Simmons's alleged adverse impacts rest on speculation and conjecture. Therefore, we
conclude Simmons fails to demonstrate a prima facie case of racial discrimination
based on a lack of regular performance reviews.
Krueger's Pay Raise Standard
Simmons's disparate treatment pay raise claim is narrowly focused upon the
standard applied by one supervisor, Kevin Krueger. But Simmons does not satisfy the
prima facie requirements for that claim.
Simmons's disparate treatment claim based on Krueger's pay raise standard is
also subject to the McDonnell Douglas burden-shifting analysis. To establish a prima
facie case of racial discrimination based on disparate treatment, the employee must
show that (1) he belongs to a protected class, (2) that he and the nonprotected, similarly
situated employee, or comparator, did substantially the same work, (3) he was treated
51 Brooks v. Firestone Polymers. LLC. 2014 WL 5088657, at *9. 52 Alonso, 178 Wn. App. at 746. 53 See Higgins. 481 F.3d at 486-87 (determining that the failure to give timely performance reviews was not an adverse employment action); Wojciechowski v. Nat'l Oilwell Varco. L.P.. 763 F. Supp. 2d 832, 857 (S.D. Tex. 2011) ("[The] failure to grant [the employee's] request for a performance review, in and of itself, does not constitute an 'adverse employment action . . ..'").
13 No. 72836-9-1/14
less favorably in his employment than a comparator, and (4) he suffered an adverse
employment action.54
The critical question is what comparators Simmons must establish for a prima
facie case. Simmons argues his disparate treatment pay raise claim requires
comparators that have only some rational relationship to the discriminatory conduct at
issue. But in a pay raise setting, the "'similarly situated'" analysis is stringent.55 The
"comparator must be nearly identical" to the employee in all relevant and material
respects.56
To determine whether employees are directly comparable, we may look to all
relevant factors, including whether the employees held the same job description, were
subject to the same standards, were subordinate to the same supervisor, and had
comparable experience, education, and other qualifications.57 Enough common factors
must exist "to allow for a meaningful comparison" to determine "whether intentional
54 Domingo. 124 Wn. App. at 81. 55 Moran v. Selig. 447 F.3d 748, 755 (9th Cir. 2006) (holding that the employee in the protected class must be "similarly-situated in all material respects" to the employees who are allegedly treated more favorably) (quoting McGuinness v. Lincoln Hall. 263 F.3d 49, 53-54 (2d Cir. 2001)); Pierce v. Commonwealth Life Ins. Co.. 40 F.3d 796, 802 (6th Cir. 1994) (holding that the employee in the protected class must be similarly situated "in all relevant aspects" and "nearly identical" to the employees who are allegedly treated more favorably). 56 Wilson v. B/E Aerospace. Inc.. 376 F.3d 1079, 1091 (11th Cir. 2004); Aiavi v. Aramark Bus. Servs.. Inc.. 336 F.3d 520, 531-32 (7th Cir. 2003): see also Coleman v. Donahoe. 667 F.3d 835, 846 (7th Cir. 2012) ("Similarly situated employees 'must be directly comparable to the [employee] in all material respects,' but they need not be identical in every conceivable way." (internal quotation marks omitted) (quoting Patterson v. Indiana Newspapers. Inc.. 589 F.3d 357, 365-66 (7th Cir. 2009))). 57 Ajayj, 336 F.3d at 532.
14 No. 72836-9-1/15
discrimination was at play."58 If the employee fails to establish a prima facie case,
summary judgment is proper.
Krueger supervised Simmons from April 2008 to October 2010. Of course,
Simmons may use any conduct occurring before April 2008 or after October 2010 as
circumstantial evidence to prove a discriminatory motive. But any actionable disparate
treatment based on Krueger's pay raise standard necessarily turns on Krueger's actions
while supervising Simmons.
Simmons fails to establish that he and his purported comparators were similarly
situated in all relevant and material respects. The superior court concluded Simmons
"has not presented a material question of fact" whether Jenkins and Selene-Hait are
valid comparators.59 There was "no side-by-side comparison of these employees' job
duties, skills, or education in a meaningful way."60 The record here lacks any evidence
that Jenkins and Selene-Hait had the same job description, had comparable
experience, education, and other qualifications as Simmons, and performed
substantially the same work as Simmons. Additionally, Jenkins and Selene-Hait were
not subordinate to the same supervisor. For example, from April 2008 to October 2010,
Simmons reported to Krueger and was the only WMS employee whom Krueger
recommended for a raise. When Jenkins and Selene-Hait received raises, Simmons no
longer reported to Krueger. In light of the record's scant information about his purported
comparators, Simmons fails to offer evidence sufficient to create a genuine issue of
58 Coleman. 667 F.3d at 847. 59 RP (Nov. 15, 2013) at 73. Dotson, Green, Doty, and Wiitala did not receive any pay raises during or after the relevant period and thus are not valid comparators for Simmons's disparate treatment pay raise standard claim. 60RP(Nov. 15, 2013) at 72.
15 No. 72836-9-1/16
material fact that he was similarly situated to and did substantially the same work as
Jenkins and Selene-Hait. Therefore, Simmons fails to demonstrate a prima facie case
of racial discrimination based on Krueger's pay raise standard.
But even if Simmons established a prima facie case of racial discrimination, his
disparate treatment claim would still fail because DSHS has articulated legitimate,
nondiscriminatory reasons for Simmons's pay raises from April 2008 to October 2010,
and Simmons has not presented evidence that these reasons were a pretext for
discrimination.
The employer must "articulate its nondiscriminatory reason for the challenged
action with some specificity in order to afford the [employee] 'a full and fair opportunity
to demonstrate pretext.'"61 To show pretext using circumstantial evidence, an employee
must put forward specific and substantial evidence challenging the credibility of the
employer's motives.62 "[P]retext may be demonstrated by direct or indirect evidence,
including evidence presented as part of the prima facie case."63 The employee must
show that the employer's articulated reasons "(1) had no basis in fact, (2) were not
really motivating factors for its decision, (3) were not temporally connected to the
adverse employment action, or (4) were not motivating factors in employment decisions
for other employees in the same circumstances."64 In other words, the employee must
61 Lindemann, supra, at 2-35 (quoting Burdine. 450 U.S. at 255-56); HE 144 Wn.2dat181.
62 Vasguez. 349 F.3d at 642. 63 Johnson. 80 Wn. App. at 229. 64 Fulton. 169 Wn. App. at 161.
16 No. 72836-9-1/17
provide enough evidence for a reasonable fact finder to conclude the employer
undertook the challenged employment action because of the employee's race.65
A trial court may still grant summary judgment even though the employee
establishes a prima facie case and presents some evidence to challenge the employer's
reasons for its action.66 When the record "'conclusively reveal[s] some other,
nondiscriminatory reason for the employer's decision, or ifthe [employee] 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 is proper.67
Simmons fails to demonstrate that Krueger applied a disparate treatment pay
raise standard to his detriment. In the two-and-a-half years that Krueger supervised
Simmons, Krueger recommended a raise only for Simmons. With limited exception, a
salary freeze prevented any WMS employees from receiving raises. Simmons focuses
on Krueger's deposition testimony that he did not give Simmons a 5 percent raise in
2008 because, although his performance was "excellent," "there wasn't anything
extraordinary" about his work.68 Krueger also testified that he gave Jenkins a 5 percent
raise for "excellent" but not extraordinary work in 2013.69 But Simmons ignores the
context of these raises.
65 McDaniels, 2014 WL 5471991, at *7. 66 Millioan v. Thompson. 110 Wn. App. 628, 637, 42 P.3d 418 (2002). 67 Fulton. 169 Wn. App. at 161-62 (first alteration in original) (emphasis omitted) (quoting HN]- 144 Wn.2d at 184-85). 68 CP at 104. 69 CP at 105.
17 No. 72836-9-1/18
The record here conclusively reveals that DSHS proffered legitimate,
nondiscriminatory reasons for Simmons's raises. At best, Simmons raises a "'weak
issue of fact.'"70 For example, Krueger testified that the recommended 3 percent raise
in 2008 would "bring him up" to Wiitala and Doty, to whom Krueger did not give a raise
in 2008.71 After Simmons left Krueger's supervision, only two WMS employees
received raises: Jenkins and Selene-Hait. Krueger objected to Selene-Hait's 7.5
percent retention raise in 2011. Jenkins received a 5 percent raise in 2013 because
she had increased job duties and because DSHS redesignated her position to Band 2.
Krueger never recommended raises for Green or Dotson because they negotiated their
salary to the top of their pay bands. Further, Krueger did not supervise Doty when he
received his 5 percent raise in 2007, and Krueger never gave Wiitala a raise.
In sum, the record demonstrates that Simmons has received the most raises
since 2001. Simmons received a 5 percent raise in 2002, a raise in 2004, a $12,000
lump sum payment in 2006, and a 3 percent raise in 2008, implemented in 2010
retroactive to 2008. Importantly, from April 2008 to October 2010, while Krueger
supervised Simmons, the only employee who received a raise was Simmons. Simmons
has not rebutted DSHS's explanations with any evidence that Krueger's failure to give
Simmons more or greater raises from April 2008 to October 2008 was a pretext for
discrimination Therefore, Simmons fails to establish a prima facie case of racial
discrimination based on Krueger's pay raise standard.
70 id, 71 CP at 1163.
18 No. 72836-9-1/19
Finally, Simmons raises for the first time on appeal an equal protection claim.
With minimal authority, he generally contends that treating an individual different than
others with or without racial discrimination violates equal protection. But he provides no
compelling authority for this vague proposition. Because we consider only "'issues
called to the attention of the trial court'" when "reviewing an order granting or denying
summary judgment," we reject his contention.72
CONCLUSION
Simmons fails to establish a genuine issue of material fact for his disparate-
treatment claims. We therefore conclude the trial court properly granted DSHS
summary judgment.
We affirm.
WE CONCUR:
/
72 Bankston v. Pierce County. 174 Wn. App. 932, 941, 301 P.3d 495 (2013) (quoting RAP 9.12).