ACKERMAN v. QUILCENE SCHOOL, 29300-5-II (Wash.App. 7-29-2003)


No. 29300-5-IIThe Court of Appeals of Washington, Division Two.
Filed: July 29, 2003 UNPUBLISHED OPINION

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of Jefferson County Docket No: 01-2-00385-1 Judgment or order under review Date filed: 08/09/2002

Counsel for Appellant(s), Natalie Joy Teague, Attorney at Law, 18 W Mercer St. Ste 400, Seattle, WA 98119-3971.

Counsel for Respondent(s), Phillip D. Noble, Helsell Fetterman LLP, 1001 4th Ave Plaza Ste 4200, Seattle, WA 98154.


Kristy Ackerman appeals summary judgment dismissal of her action against the Quilcene School District, which did not rehire her as a full-time custodian following her approved family leave. She argues that the District illegally engaged in (1) gender, pregnancy, and family status discrimination; (2) retaliation; (3) wrongful discharge in violation of public policy; and (4) breach of implied contract. We hold that she was not entitled to reinstatement following her family leave because her custodian position had been eliminated by a bona fide restructuring when the District underwent major remodeling and construction projects. Because Ackerman failed to establish a prima facie case of breach of implied contract or discrimination on any of her stated grounds, we affirm.

FACTS I. Maternity and Family Leave
From 1987 until her maternity leave, Kristy Ackerman was the only full-time custodian for the Quilcene School District. During the school year, her job responsibilities included cleaning the elementary school, kitchen, art area, gym, shower rooms, music room, and faculty room. During the summer, her job responsibilities included cleaning the cafeteria and refinishing the wood floors in the cafeteria, gym, music room, and faculty room. Her work evaluations were consistently satisfactory, with no disciplinary actions.

The District had written employment policies allowing any staff member to take (1) `maternity leave’ for the periods of `actual disability due to pregnancy or childbirth’;[1] and (2) `family leave,’ following a period of actual disability, to ‘[c]are for a newborn child.’ The family leave policy, at issue here, provided that reinstatement `need not occur if . . . the specific job is eliminated by a bona fide restructuring, or a reduction-in-force resulting from lack of funds or lack of work.’ Clerk’s Papers (CP) at 45, 46, 48, 49.

In 1998, the District granted Ackerman maternity leave; after taking this leave, she returned to work. In 1999, she became pregnant with twins, began experiencing complications, and again requested maternity leave. Richard Minarik, then District Superintendent, assisted in structuring her leave to extend it for almost two additional months, using other leave time to follow her maternity leave. The District approved Ackerman’s leave from February 22 to November 24, 1999, approximately as follows: (1) five sick days, from February 22 to 26; (2) twelve weeks of family leave for the birth of one child, from March 1 to May 21 (excluding paid holidays); (3) twelve annual leave days, from May 24 to June 9 (including Memorial Day); (4) twenty-four more sick days, from June 10 to July 14 (including Independence Day); (5) leave without pay for the rest of summer vacation, from July 15 to August 31; and (6) a second twelve weeks of family leave for the birth of the other child, from September 1 to November 24 (excluding paid holidays). Ackerman believed that the District would reinstate her to her custodian job when she returned from leave.

Meanwhile, the District `was commencing a major remodel of its facilities,’ demolishing old buildings and constructing new buildings over a year’s time. CP at 37. The District informed Ackerman that this `construction’ would reduce ‘19,000 square feet of physical space’ and, thus, reduce the custodial needs, although new `custodial assignments’ had not been finalized. CP at 56. According to the parties, ultimately, daily custodial hours were reduced from thirteen to nine.

II. Full time Custodian Position Eliminated; Reduced Hours Reassigned
While Ackerman was on leave, Minarik reallocated the reduced custodial hours, giving six hours to Carla Newman, the District’s part-time custodian since 1988, and three hours to Kristy Ackerman’s sister-in-law, Janet Ackerman, a District cook and occasional custodian.

Minarik explained that Newman (1) was `more reliable and did a better job’ than Kristy Ackerman; and (2) `would not be willing’ to work for only an hour or two, which would not be `economically feasible.’ Minarik justified giving the other hours to Ackerman’s sister-in-law cook because (1) the construction `would affect the kitchen facilities’ and reduce the Sneed for kitchen help,’ (2) `it is difficult to find cook replacements,’ and (3) it helped assure that Janet Ackerman would remain with the District even though Minarik could assign Janet only two and one-half hours of kitchen time. CP at 39. This left no custodial hours to assign to Kristy Ackerman on her return from leave.

Minarik explained that (1) these decisions were `in the best interests of the District with respect to keeping and maintaining the best personnel’; (2) there was no collective bargaining agreement making `seniority’ the deciding factor; (3) nonetheless, Newman was a `long term `senior” employee, with slightly less seniority than Kristy Ackerman; and (4) Janet Ackerman had been a District employee longer than Kristy Ackerman. CP at 40.

Minarik held a meeting with Ackerman, who was still on leave, and the new incoming superintendent, Gil Johnson. They told Ackerman that the reduced custodial hours had been given to Newman and Janet Ackerman. They encouraged her to apply for a custodial position that would reopen following completion of the construction project.

Kristy Ackerman protested that she had more seniority and experience than the other two women and describes their ensuing conversation as follows:

In response, Mr. Johnson tried to convince me to accept their decision. Mr. Johnson said, `Am I to understand that you are a mother of new twin boys?’ I replied, `Yes.’ Mr. Johnson then said[,] `Oh, the way I see it, it is a win-win situation for you you get to stay home with your new babies and draw unemployment at the same time.’

CP at 124-25. She also asked whether `the situation would have been any different if I was not on maternity leave,’ to which Minarik replied, `I don’t know, Kristy.’ CP at 125.

Ackerman stated that (1) Newman appeared to be about 50-years-old, with her youngest child appearing to be in his early 20s; and (2) Janet Ackerman was 45, with her youngest child age 15. Ackerman, on the other hand, had three very young children.

III. Ackerman’s Protest
Ackerman wrote to the District Superintendent and the new principal, Judi Mackey, voicing concerns about Johnson’s and Minarik’s comments to her in the meeting and requesting restoration to her full-time position.

Ackerman recounted the events to Mackey in a parking lot, after which Mackey replied, according to Ackerman, that (1) she (Mackey) had heard about the hiring decisions, (2) Ackerman should talk to Johnson, and (3) Ackerman could bring the problem to `some sort of agency.’ CP at 126.

Ackerman next wrote to the School Board.[2]

IV. Ackerman not Rehired for New Position
As the construction came to an end, the District published notice of an opening for a full-time custodian.[3] About twenty people applied, and Ackerman was among the five finalists offered interviews. The interview team included Mackey, Newman, and a teacher.[4] They asked the same questions to all applicants and independently scored the applicants. When the committee consolidated applicant scores, Ackerman and her sister, Susan Williams, were the top candidates, although Williams held a slight edge.

Mackey checked their references, recording answers to her questions contemporaneously on a standard form. Mackey spoke with Williams’ former supervisor, a Peninsula School District principal for whom she had served as custodian; her supervisor repeatedly described her as `outstanding,’ said he would `hate to lose her,’ and said he would `absolutely’ rehire her. CP at 80-81. Mackey also spoke with Randy Swenson, one of Ackerman’s references and her co-custodian at the Quilcene Community Center. Swenson gave Ackerman an average overall rating, questioning her flexibility, attention to detail, awareness, complacency, and enthusiasm. When asked if he would rehire Ackerman, he replied that he `would explore other options available.’ CP at 83.

Based on the interviews and references, the committee determined that Williams was the superior candidate and recommended that Johnson hire her. Johnson and the District’s Board approved.

V. Lawsuit
Ackerman sued the District, asserting (1) gender, pregnancy, and family status discrimination in firing her; (2) retaliation in refusing to hire her after she complained to the Equal Employment Opportunity Commission (EEOC); (3) wrongful discharge in violation of public policy against family status discrimination; and (4) breach of contract implied from the District’s leave policies.

The District moved for summary judgment, arguing that (1) Ackerman was discharged incident to a bona fide restructuring; (2) Ackerman was not rehired following her leave because she was the inferior candidate; and (3) in any event, Ackerman lacked evidence of any discrimination. Ackerman moved to strike portions of the declarations the District submitted in support of its motion for summary judgment as hearsay and lacking a foundation in personal knowledge. The trial court denied Ackerman’s motion to strike, granted the District’s motion for summary judgment, and dismissed all of Ackerman’s claims.

Ackerman appeals.

ANALYSIS I. Standard of Review
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Hubbard v. Spokane County, 146 Wn.2d 699, 707, 50 P.3d 602 (2002); CR 56(c). After the moving party has produced evidence showing that no factual dispute exists that might affect a trial’s outcome, the burden shifts to the nonmoving party to set forth facts showing that there is a genuine issue of material fact. Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267, 279, 937 P.2d 1082 (1997). We review summary judgments de novo, viewing all facts and reasonable inferences in the light most favorable to the nonmoving party. Hubbard, 146 Wn.2d at 706-07. If reasonable minds can reach only one conclusion, summary judgment is proper. Hubbard, 146 Wn.2d at 707.

In discrimination cases, we apply this standard to the McDonnell Douglas[5] three-step evidentiary burden-shifting protocol. Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 180, 23 P.3d 440 (2001). Initially, a plaintiff must set forth a prima facie case[6] of unlawful discrimination. Hill, 144 Wn.2d at 181. Failure to do so entitles the defendant to `prompt judgment as a matter of law.’ Hill, 144 Wn.2d at 181
(citing Kastanis v. Educ. Employees Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26 (1993)).

We focus first on Ackerman’s claims not grounded in discrimination. Second, we address her discrimination-based claims. For the latter, our inquiry ends at the first stage of the McDonnell Douglas three-part burden-shifting protocol because Ackerman fails to establish a prima facie case of discrimination.

II. Non-Discrimination Based Claims
A. Implied Contract `Bona Fide Restructuring’

Ackerman argues that the District’s employment manual and representations to her created an implied contract not to terminate her employment when she took leave, which the District breached. The District argues that Ackerman’s termination was due to `bona fide restructuring,’ a point Ackerman did not challenge below. Ackerman has failed to establish an implied contract.

District Policy No. 5323.4, `Family Leave,’ provides one 12-week period of family leave to care for a newborn child for any 12-month period that the employee has worked, in addition to any `sick leave taken due to the employee’s temporary disability attributable to pregnancy or childbirth. (See, Policy 5322-Maternity Leave).’ CP at 179. An employee returning from such a 12-week period of family leave `shall be entitled to the same [or equivalent] position held by the employee when the leave commenced.’ CP at 180. But the District is not required to reinstate such an employee if `the specific job is eliminated by a bona fide restructuring, or a reduction-in-force resulting from lack of funds or lack of work.’[7] CP at 49.

When Ackerman took maternity and family leave from February to November 1999, she was aware (1) of this family leave provision; (2) that the District was going to reduce its standard thirteen hours of custodial work to nine hours because of an impending `major remodel of its facilities’; (3) that this remodel project would include demolishing and rebuilding several buildings, and eliminating ‘19,000 square feet of physical space’; and (4) that this elimination of space would `result in a change of assignments and hours worked,’ leaving Ackerman’s custodial hours and work schedule uncertain. CP at 56.

Ackerman does not dispute that the District proceeded with its facilities construction and remodel project and that, as a result, the District needed to restructure her job. Rather, she argues that the restructured hours should have gone to her rather than someone else.[8]
But the District family leave policy did not entitle her to return to her position, or a similar position, when she returned from leave because her specific job had been eliminated by a bona fide restructuring.[9] Thus, there was no implied contract to rehire her and the District committed no breach.

B. Public Policy Family Status

Ackerman next argues that the trial court erred in dismissing her claim of wrongful discharge in violation of the public policy against `family status’ discrimination, which policy she asserts is clearly established in RCW 49.60.010 and WAC 162-30-020. The District responds that (1) these sources do not show a `clear’ public policy as Ackerman alleges; and (2) even were there such an established public policy, Ackerman failed to show that she was discharged as a result of her family status. We agree with the District.

Wrongful discharge in violation of public policy is an exception to Washington’s general rule that an employment contract of indefinite term is terminable `at will.’ Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 223, 685 P.2d 1081 (1984). Establishing wrongful discharge in violation of public policy requires proof of four elements:

(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).

Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 941, 913 P.2d 377 (1996) (citations omitted). Ackerman’s claim meets none of these four requirements.

1. Clear public policy
Ackerman argues that RCW 49.60.010 establishes a clear public policy against discrimination on the basis of `family status.’ The District replies that neither this statute, related statutes, nor Ackerman’s cases reveal the existence of such policy.

To determine if a plaintiff presents a clear public policy, courts should inquire whether the employer’s conduct contravenes the letter or purpose of a constitutional, statutory, or regulatory provision or scheme. Prior judicial decisions may also establish the relevant public policy. However, courts should proceed cautiously if called upon to declare public policy absent some prior legislative or judicial expression on the subject.

Thompson, 102 Wn.2d at 232 (quoting Parnar v. Americana Hotels, Inc., 65 Haw. 370, 652 P.2d 625, 631 (1982)).

A plaintiff’s mere ability to `point to a potential source of public policy that addresses the relevant issue’ does not show a clear mandate of public policy. Sedlacek v. Hillis, 145 Wn.2d 379, 389, 36 P.3d 1014
(2001). Rather, the asserted policy `must be clear’ and `truly public’; the `wrongful discharge exception should be applied cautiously in order to avoid allowing an exception to swallow the general rule that employment is terminable at will.’ Sedlacek, 145 Wn.2d at 389-90. `An argument for the adoption of a previously unrecognized public policy under Washington law is better addressed to the Legislature,’ the `fundamental source’ of public policy. Sedlacek, 145 Wn.2d at 390.

Here, Ackerman primarily relies on the following legislative statement in RCW 49.60.010:

The legislature hereby finds and declares that practices of discrimination against any of its inhabitants because of . . . families with children . . . [is] a matter of state concern, that such discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state.

She contends that Washington courts recognize that RCW 49.60.010 expresses a clear public policy and is sufficient to state a tort claim for wrongful discharge, citing Roberts v. Dudley, 140 Wn.2d 58, 69, 993 P.2d 901 (2000); Marquis v. City of Spokane, 130 Wn.2d 97, 108-09, 922 P.2d 43 (1996); and Bennett v. Hardy, 113 Wn.2d 912, 927, 784 P.2d 1258 (1990).[10]

But none of these cases suggest that in mentioning various protected classes, the Legislature sufficiently expressed a clear public policy in RCW 49.60.010 for purposes of creating a discrimination-based wrongful discharge claim. In Roberts, the Supreme Court held that terminating an employee due to gender violates clear public policy as established in case law, RCW 49.12.200, and RCW 49.60.010-.040.[11] Roberts, 140 Wn.2d at 66-71. But Roberts does not suggest that RCW 49.60.010 alone is sufficient to establish public policy nor does it address family leave status as a ground for wrongful discharge.

Marquis extended RCW 49.60.030(1) discrimination protections to independent contractors. Marquis, 130 Wn.2d at 112-13. Not only was it not a wrongful discharge case, but also it cites RCW 49.60.010 merely as a `general provision’ and a statement of `legislative purpose’ opposing discrimination on various bases, which the Court used to elucidate the scope of RCW 49.60.030(1). Marquis, 130 Wn.2d at 106, 108.

In Bennett, the Court held that terminating employees in retaliation for opposing age discrimination violates clear public policy. Bennett, 113 Wn.2d at 924. The Court gleaned this public policy from RCW 49.44.090
(`unfair practice’ to make adverse employment decisions based on age); Dicomes v. State, 113 Wn.2d 612, 782 P.2d 1002 (1989) (whistleblowing); and RCW 49.60.210 (unfair practice to retaliate against those opposing discrimination). Bennett, 113 Wn.2d at 924. The Court mentioned RCW 49.60.010 only in discussing whether the definition of `employer’ in RCW 49.60.040 should limit the availability of tort actions rooted in public policy to employers with more than eight employees. Bennett, 113 Wn.2d at 927, 928. Like the other cases Ackerman cites, Bennett does not address wrongful discharge based on family leave status.

Ackerman’s legal authorities do not support her position that RCW 49.60.010 sufficiently declares public policy against family status discrimination in employment. The only authority mentioning family status is RCW 49.06.010, which is simply a `general provision’ summarizing a `legislative purpose’ that helpfully elucidates the scope of the ensuing anti-discrimination provisions, such as RCW 49.60.030(1). Marquis, 130 Wn.2d at 106, 108. Moreover, the Legislature addresses discrimination against families with children only in the context of `real estate transactions.’ RCW 49.60.030(1)(c), .222-.225. In contrast, family status is conspicuously absent from the Legislature’s list of `unfair’ discriminatory employment practices in RCW 46.60.180 and its broad declaration of the `civil right’ to `be free from discrimination because of race, creed, color, national origin, sex, or the presence of any sensory, mental, or physical disability’ in RCW 46.60.030(1).[12]

Applying the wrongful discharge exception `cautiously,’ as we must under Sedlacek, 145 Wn.2d at 390, we hold that Ackerman has failed to show legislative establishment of a clear public policy against family-based discrimination in employment. Thus, Ackerman’s wrongful discharge theory fails.[13] 2. Causation and absence of justification

Even if Ackerman had presented a clear public policy, she would still need to show that the District’s unjustified, improper, public-policy-linked conduct caused her dismissal. Gardner, 128 Wn.2d at 941. Such a showing ultimately involves an inquiry into the reason for the employee’s termination. Ellis v. City of Seattle, 142 Wn.2d 450, 464, 13 P.3d 1065 (2000). And even if the employee establishes a prohibited reason for the discharge, we `balance the public policies’ involved with any `legitimate interest’ of the employer to determine whether the employer has an overriding justification. Gardner, 128 Wn.2d at 948-49. In making such a determination, we focus on the employer’s contemporaneous motive for the discharge, not `post hoc rationalizations.’ Ellis, 142 Wn.2d at 465.

As we have discussed above, the District carried its summary judgment burden of showing that it terminated Ackerman because of `bona fide restructuring’ of her custodian position as a product of the District’s major construction project, which reduced custodial work from thirteen to nine hours per day. The District’s Policy No. 5323.4 gave the District a contractual right to terminate for this reason. The record clearly shows that the District’s major construction project was contemporaneous with Ackerman’s leave and the District gave her notice that the construction would affect her work schedule upon her return from leave.

While Ackerman was on leave, Minarik reallocated the reduced custodial hours, according to what he believed was the best way to assure retention of other part-time custodians, who were `more reliable,’ `did a better job,’ would be `difficult’ to replace in the performance of their other kitchen services, and also had many years of experience with the District.

Ackerman relies heavily on Johnson’s comment during the termination meeting that terminating her position would be `a win-win situation’ for her she could `stay home with [her] new babies and draw unemployment at the same time.’ CP at 125. Although this consolatory remark clearly focused on Ackerman’s maternity and family leave status, it neither vitiates the District’s legitimate bona fide restructuring reason for terminating her position, nor shows that the District terminated her because she was on maternity or family leave. Such stray remarks, `when unrelated to the decisional process, are insufficient to demonstrate that the employer relied on illegitimate criteria, even when such statements are made by the decision-maker in issue.’ Smith v. Firestone Tire
Rubber Co., 875 F.2d 1325, 1330 (7th Cir. 1989).[14] Ackerman has failed to show how Johnson was connected to the firing decision or how his comments affected the District’s decision. Thus, she has failed to establish a material issue of fact as to the causation factor necessary for her claim for wrongful discharge in violation of public policy. And, as we have noted earlier, she does not controvert the District’s justification for terminating her position as a by-product of the major construction project.

We hold, therefore, that the trial court did not err in granting the District summary judgment on Ackerman’s claim for wrongful discharge based on her family status in violation of public policy.

III. Discrimination
Ackerman posits discrimination theories for her termination and for the District’s failure to rehire her: (1) The District terminated her because it stereotyped her as a mother who should stay home with her children, which is sex discrimination; (2) terminating her and retaining other women `past childbearing age’ was discrimination based on her potential to become pregnant; and (3) she was not rehired in retaliation for her discrimination complaints about her termination.

The District replies both that (1) Ackerman failed to present a prima facie case for all her discrimination theories; and (2) the District provided legitimate, non-discriminatory reasons for its employment decisions.

We analyze each of Ackerman’s theories under the McDonnell Douglas[15]
three-step evidentiary burden-shifting protocol.[16]

To establish a prima facie discrimination claim, a plaintiff must first show:

(1) membership in a protected class; (2) the employee is qualified for the employment position or performing substantially equal work; (3) an adverse employment decision including termination or denial of promotion; and (4) selection by the employer of a replacement or promoted person from outside the protected class.

Kuest v. Regent Assisted Living, Inc., 111 Wn. App. 36, 44, 43 P.3d 23
(2002) (citations omitted). The plaintiff `must establish specific and material facts to support each element of his or her prima facie case.’ Kuest, 111 Wn. App. at 44. Mere opinion, speculation, or conclusory statements are insufficient. Marquis, 130 Wn.2d at 105.

A. Gender and Pregnancy

Ackerman asserts gender and the capacity to become pregnant[17] as protected classes. But the employees that the District retained and to whom it redistributed the reduced custodian hours were in this same class:

Carla Newman and Janet Ackerman are both women. Both have children. And the record does not show that, although they are older than Kristy Ackerman, they lacked the capacity to become pregnant at the time the District made its work assignment decisions. Absent an offer of proof, the trial court could not speculate that these other two mothers were `past childbearing age.’ See Marquis, 130 Wn.2d at 105.

We agree with the trial court that Ackerman failed to establish a prima facie case of discrimination based on gender and child-bearing capacity with `specific’ facts. Kuest, 111 Wn. App. at 44. Accordingly, the burden did not shift to the District to prove lack of pretext, and we do not address it.

B. Retaliation

Ackerman argues that when she applied for the new custodian position after completing her leave, the District did not rehire her because she had complained about gender, pregnancy, and family-status discrimination to the District and the EEOC. The District replies that (1) Ackerman failed to present a prima facie case of retaliation; and (2) even if she did, the District did not rehire her because it chose to hire a superior applicant.

RCW 49.60.210(1) provides, It is an unfair practice for any employer . . . to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.

To establish a prima facie case of retaliation, a plaintiff must show that:

‘(1) he or she engaged in statutorily protected activity, (2) an adverse employment action was taken, and (3) there is a causal link between the employee’s activity and the employer’s adverse action.’ Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 861-62, 991 P.2d 1182 (2000) (citing Delahunty v. Cahoon, 66 Wn. App. 829, 839, 832 P.2d 1378 (1992)). Evidence of retaliation may be circumstantial; proximity in time between the protected activity and the employment action suggests retaliation. Wilmot v. Kaiser Aluminum Chem. Corp., 118 Wn.2d 46, 69, 821 P.2d 18 (1991).

We examine the facts in the light most favorable to Ackerman, the party against whom the trial court granted summary judgment. Ackerman produced ample evidence that she complained to the District and to the EEOC that inappropriate sexual and pregnancy stereotypes led to her termination by the District, conduct `that is at least arguably a violation of the law.’ Kahn v. Salerno, 90 Wn. App. 110, 130, 951 P.2d 321, review denied, 136 Wn.2d 1016 (1998). Nonetheless, she fails to establish that the District’s choice of another woman to fill a new position was the product of retaliation for her discrimination-based complaints.

First, more than six months transpired between Ackerman’s last complaint of discrimination and the District’s decision not to rehire her.[18] The Francom court held that because fifteen months had passed since the plaintiff’s complaints of sexual harassment, and because she had worked in the interim without retaliation, there was nothing to suggest a `nexus between her complaint and the scheduling changes.’ Francom, 98 Wn. App. at 863. Here, not only had a substantial period of time elapsed, but also the District had hired Ackerman as a substitute custodian during the period in which she was actively complaining about discrimination.

Moreover, Ackerman’s evidence of retaliation was scant in that she showed that only one member of the hiring committee, Mackey, was aware of her discrimination complaints. Thus, there is little to suggest a nexus between her complaints and the District’s decision not to rehire her. And even if this scant evidence were sufficient, the District presented ample evidence that it chose to hire another woman whom it deemed, based on objective facts,[19] to be a superior applicant; Ackerman was the acknowledged second choice.

IV. Hearsay
As for the District’s stated reasons for hiring another woman instead of rehiring her, Ackerman also argues that (1) Judy Mackey’s declaration includes inadmissible hearsay in that the District used certain statements to prove that `one applicant was better than another because of the opinion of a supervisor from another job,’ Br. of App. at 15; and (2) Minarik’s declaration includes statements for which he lacked `personal knowledge,’ including his `understanding’ and `belief’ about the thoughts and actions of others. Br. of App. at 17.

The District replies that (1) it offered these statements to show the state of mind or motive behind its hiring decision, which was non-discriminatory, a subject about which the declarant would have personal knowledge; and (2) any error was harmless.

We do not consider Ackerman’s argument because it fails to include `references to relevant parts of the record.’ RAP 10.3(a)(5).[20] But even were we to review this issue, it would not change our holding.[21]


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 pursuant to RCW 2.06.040, it is so ordered.


[1] The maternity leave policy provided that an employee `shall return to the same assignment, or a similar position . . . . subject to the availability of a position,’ Clerk’s Papers (CP) at 46, but this provision does not appear to be at issue here. See n. 7, supra.
[2] Ackerman also filed a discrimination complaint with the Equal Employment Opportunity Commission (EEOC), but she apparently withdrew it.
[3] The District also advertised for a substitute custodian. Ackerman applied and has been, `from time to time, as needed,’ employed as a substitute custodian for the District. CP at 74.
[4] A parent was apparently also on the committee but could not attend the interview.
[5] McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
[6] Establishing a prima facie case raises a `legally mandatory, rebuttable presumption’ of discrimination, shifting the evidentiary burden to the defendant `to produce admissible evidence of a legitimate, nondiscriminatory explanation for the adverse employment action sufficient to `raise a genuine issue of fact as to whether [the defendant] discriminated against the plaintiff.” Hill, 144 Wn.2d at 181
(quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the defendant fails to carry this burden of production, the plaintiff is entitled to judgment as a matter of law. Hill, 144 Wn.2d at 181.

If the defendant carries the burden, he rebuts the presumption of discrimination, and returns the burden of proof to the plaintiff to `show that [defendant’s] stated reason for [the adverse action] was in fact pretext.’ Hill, 144 Wn.2d at 182 (quoting McDonnell Douglas, 411 U.S. at 804). If the plaintiff cannot do so, the defendant is entitled to judgment as a matter of law. Hill, 144 Wn.2d at 182.

[7] The District’s Maternity Leave policy, No. 5322, is similar, providing that an employee who has taken maternity leave for `the actual period of disability relating to pregnancy or childbirth or up to twelve weeks of family leave’ is entitled to return to the same or similar position upon her return; or upon return from an `extended maternity leave,’ the employee is entitled to a position in the district `subject to the availability of a position for which she is qualified,’ with the caveat that the District shall make ‘[a]n effort’ to place her `in her original position or in a comparable position.’ CP at 177.

Ackerman was terminated in September while on `unpaid family leave.’ Br. of App. at 7. This appears to be `authorized family leave’ covered by Policy No. 5323.4 or, as Ackerman characterzies it, `unpaid family medical leave.’ Br. of App. at 7. Thus, this case does not appear to involve the maternity policy. But even it if did, the maternity leave policy includes a caveat that return to work is `subject to the availability,’ CP at 177, a broad category that we interpret to include unavailability due to restructuring or reductions-in-force. Thus, our analysis of the family leave policy would apply with equal force to the maternity leave policy.

[8] Ackerman also argues for the first time on appeal that genuine issues of material fact remain as to whether the restructuring was `bona fide’ because (1) `the change in custodial workload was clearly temporary,’ Br. of App. at 26; and (2) the District still had nine hours of custodial work.

These are new factual claims that she did not raise in the summary judgment proceeding below; thus, we do not consider them. RAP 2.5(a).

Furthermore, she cites no legal authority to support these arguments; for this reason also, we do not consider them. RAP 10(a)(5). See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

[9] Closing facilities is a legitimate reason to reconfigure employment and to eliminate positions. See, e.g., Balboni v. Great Atl. Pac. Tea Co.,

F. Supp., 2003 WL 1856429, *7 (D.Mass. 2003) (`legitimate justification’ for discharging manager when `store closures necessitated a downsizing,’ 16 of 71 managers were fired, and employer’s `subjective assessment’ of employee was comparatively low); Howard v. West Baton Rouge Parish School Bd., 843 So.2d 511 (La.App. 1 Cir. 2003) (bona fide and in good faith to eliminate auto shop course); Homes-Naples v. Girard Bd. of Educ., 212 F. Supp.2d 743, 750-51 (N.D.Ohio. 2001) (summary judgment to school district on black female custodian’s discrimination claim where district demolished one of three old schools and rebuilt it next to one of the other schools, eliminating her custodial position from the demolished school and demoting and transferring her).

[10] Ackerman also claims, in one sentence, that `Defendant’s violation of WAC 162-30-020 . . . is a violation of public policy as well, as it is a regulatory provision of RCW 49.60.’ Br. of App. 27-28. This regulation addresses pregnancy discrimination in employment. We need not consider this argument, which Ackerman did not argue below and fails to link to `family status’ on appeal. RAP 2.5(a), 10.3(a)(5).
[11] The Court also notes five other statutes reinforcing this policy. Roberts, 140 Wn.2d at 67 n. 7.
[12] Similarly, other states who have addressed this issue have declined to recognize an exception to the doctrine of employment at will due to familial obligations to children. See Upton v. JWP Businessland, 425 Mass. 756, 682 N.E.2d 1357, 1359-60 (1997) (finding no public policy protecting employees from refusing to work long hours due to having young children:

`We sympathize with the difficulties of persons in the position of the plaintiff who face the challenge of reconciling parental responsibilities with the demands of employment. However, employer liability under common-law principles is not an appropriate means of addressing the problem in the at-will employment context.’); Hundley v. Dayton Power Light Co., 148 Ohio App.3d 556, 774 N.E.2d 330, 334-35 (Ohio Ct.App. 2002) (rejecting arguments that FMLA and various Ohio statutes created a clear public policy that employees should not be penalized for taking leave to care for injured children); Lloyd v. AMF Bowling Centers, Inc., 195 Ariz. 144, 985 P.2d 629, 632
(Ariz.Ct.App. 1999) (finding that worker fired for refusing to cover for ailing coworker, because he had to watch his 4-year-old son, was not protected by public policy).

See also Peggie R. Smith, Parental-Status Employment Discrimination:

A Wrong in Need of a Right?, 35 U. Mich. J.L. Reform 569, 573 (2002) (`Arguments to prohibit employers from discriminating against parents run counter to traditional anti-discrimination employment measures. When compared with the data regarding racial or gender discrimination, for example, the evidence does not exist to indicate that employment discrimination against parents based on erroneous assumptions is a serious problem.’)

[13] This conclusion moots the need to address any of the other elements. Nonetheless, we address causation and absence of justification as alternative bases for dismissing her wrongful discharge claim.
[14] See also Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir. 1990); Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1128-29 (9th Cir. 2000) (racist comment evidenced discriminatory motive when made by member of the `decisionmaking body’).
[15] McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
[16] Marquis, 130 Wn.2d at 113 (sex discrimination); Kuest v. Regent Assisted Living, Inc., 111 Wn. App. 36, 40, 42, 43 P.3d 23 (2002) (`potential to become pregnant’ is a form of `sex discrimination’); Milligan v. Thompson, 110 Wn. App. 628, 638, 42 P.3d 418 (2002) (retaliation).
[17] Ackerman does not assert that she was pregnant during any adverse employment decision, nor does the record so reflect.
[18] Ackerman served the District with her EEOC claim on February 17, 2000, interviewed on August 17, 2000, and learned that she did was not hired for the position on August 18, 2000.
[19] Of the twenty applicants for the position, Ackerman was among the five granted an interview. Based on the individual rankings of Ackerman’s answers to the interview team’s standard questions, Ackerman became the second highest applicant. As Mackey checked references, the top applicant received a sterling recommendation, and Ackerman’s was lukewarm, raising many questions about her attitude, performance, and desirability as an employee. Ackerman does not present any evidence contradicting these facts.
[20] Although Ackerman’s Statement of the Case begins by citing the record page numbers, without quoting the allegedly hearsay statements, the Argument section contains no citations to the record. This is insufficient. See Smith v. Behr Process Corp., 113 Wn. App. 306, 338-39, 54 P.3d 665 (2002) (refusing to review `sweeping’ hearsay objections that lacked `specific argument’ about the statements).
[21] We review a trial court’s admission of evidence under CR 56(e) for abuse of discretion. King County Fire Prot. Dist. No. 16 v. Housing Auth., 123 Wn.2d 819, 826, 872 P.2d 516 (1994). And the record before us does not show such abuse.