HALEY v. KINKO’S INC., 47443-0-I (Wash.App. 5-13-2002)

No. 47443-0-IThe Court of Appeals of Washington, Division One.
Filed: May 13, 2002 UNPUBLISHED OPINION

Appeal from Superior Court of King County, No. 99-2-03402-3, Hon. Larry Jordan, September 29, 2000, Judgment or order under review.

Counsel for Appellant(s), J. S. Funk, J. Stephen Funk PS Inc, 14700 N.E. 8th St Ste 100, Bellevue, WA 98007-4115.

Alan S. Funk, 14700 N.E. 8th St Ste 100, 10900 N.E. 8th St, Bellevue, WA 98007.

J. S. Funk, J. Stephen Funk PS Inc, 14700 N.E. 8th St Ste 100, Bellevue, WA 98007-4115.

Alan S. Funk, 14700 N.E. 8th St Ste 100, 10900 N.E. 8th St, Bellevue, WA 98007.

Counsel for Respondent(s), David W. Wiley, Attorney At Law, P.O. Box 21926, Seattle, WA 98111-3926.

Sheryl D. Willert, Williams Kastner Gibbs, 4100 Two Union Square, 601 Union St., Seattle, WA 98109.

Christopher S. Marks, Williams Kastner Gibbs, P.O. Box 21926, Seattle, WA 98111-3926.

David W. Wiley, Attorney At Law, P.O. Box 21926, Seattle, WA 98111-3926.

Sheryl D. Willert, Williams Kastner Gibbs, 4100 Two Union Square, 601 Union St., Seattle, WA 98109.

Mary H. Spillane, Williams Kastner Gibbs, 4100 Two Union Square, 601 Union St., Seattle, WA 98101.

GROSSE, J.

Finding that Harvey Jaffe either failed to set forth a prima facie case of a number of his wrongful discharge claims or that he failed to show that the employer’s stated reasons for his termination were pretext for a discriminatory purpose, we affirm the dismissal of his complaint by way of summary judgment.

FACTS
In June 1993, Harvey Jaffe, age 44, was hired by Kinko’s, Inc. (Kinko’s) to work as a commercial account manager at the Redmond, Washington store. He was the first commercial account manager to be hired by Kinko’s for that area. He was hired as an at-will employee.[1] Jaffe signed two employment agreements with Kinko’s, one in June 1993 and the other in May 1994. He was hired to work out of the Redmond store as part of a sales team to increase sales for that store, specifically commercial accounts. He was paid a base salary and a commission on his sales. The position was classified as an exempt outside sales position.

Kinko’s company-wide policy is that commissions for commercial account managers are paid out of the store in which the commercial account manager is based. The general manager of a store is the supervisor of the commercial account manager from that store. When Jaffe made a sale, he would attempt to have the work done at his home store to increase both his own sales and that of his home store. Jaffe admits that if work from one of his client accounts went to a different store there was no absolute requirement that the general manager of that store pay him a commission on that work. If he made a good argument to the general manager of the other store, that general manager could, and sometimes did, pay a commission to him.

Although Jaffe noted there were no territory restrictions when he was first hired, he admits that by the end of 1993, other commercial account managers had been hired in the area, and geographic sales territories and restrictions were established. Jaffe’s territory included the area surrounding Redmond. He acknowledged that commercial account managers were “not allowed to actively solicit business from outside [their] territories” and was well aware of the territorial restrictions. Jaffe was also aware he was not entitled to commissions for out-of-territory sales, even if he brought them to the Redmond store. Jaffe knew the only exception to this rule was between the Bellevue I and Bellevue II stores.

Over the years Jaffe was a consistent top sales performer, but compliance with management requests, requirements for the reporting of information on his top client accounts, and the timely filing of his end-of-the-month sales reports became problematic. In a memo dated August 1, 1995, the Redmond general manager sent a memo to Jaffe identifying deficiencies that Jaffe needed to correct in his reporting. The general manager made it clear that improvement was necessary and established specific deadlines and goals. Although Jaffe initially made improvement, by November 1995 the regional sales manager placed him on a 60-day special evaluation status.[2]

Marya Jefferson, a woman younger than Jaffe, was hired to work in the Redmond store as a sales trainee. She was promoted quickly. When Jaffe was placed on special evaluation status he was aware that Jefferson was going to be promoted to a second commercial account manager position at the Redmond store, effective in January of 1996. Jaffe concluded that Kinko’s was going to elevate and accelerate Jefferson’s involvement in case he no longer worked at Kinko’s for whatever reason. In January, a new regional sales manager sent Jaffe a memo outlining additional actions he needed to make within a specific amount of time before he would be released from special evaluation status. Jaffe was told that he should take leave with pay during the week of January 8, 1996 after completing the requirements. On February 9, 1996, the regional sales manager sent a letter to Jaffe confirming that he fulfilled all tasks and requirements listed in the special evaluation status form and those added in January. The letter stated that Jaffe was officially released from all conditions and obligations of the special evaluation status documents. The note was complimentary and stated that continued performance in accord with the changes accomplished would make him a strong candidate for future consideration as a key account manager.

Unfortunately, after release from special evaluation status, the changes in Jaffe’s internal work performance and attitude did not last. A friend and fellow commercial account manager from a nearby store went on disability leave and asked Jaffe to oversee his accounts. Rather than have the work done at the usual store, Jaffe brought the projects to Redmond and expected to be paid commissions for the work. The regional sales manager called Jaffe into his office to discuss the projects and Jaffe’s expectations. Following this meeting, Jaffe reportedly became anxious and called his doctor. At that time, he had again fallen behind in making his internal reports. He worked all that night to prepare his end-of-the-month report.

After reviewing this end-of-the-month report, the Redmond general manager found a number of discrepancies in it. The general manager wrote Jaffe outlining the discrepancies. The net effect of the discrepancies was approximately a $900 reduction in Jaffe’s claimed commissions. Jaffe responded to his general manager with a copy to the regional sales manager with an eight-page memo challenging the denial of sales credits and commissions. He vented his dissatisfaction with company policies and actions and made strong requests for changes in those policies.

The regional sales manager responded to most of the issues raised by Jaffe and expressed concern about his unprofessional performance and attitude. While the regional sales manager supported some of Jaffe’s concerns, he defended management’s right to refuse payment for the claimed commissions and also defended the company policies. The regional sales manager told Jaffe that if he found the current conditions too onerous, too restrictive, too “siege-like,” that Jaffe would be faced with a choice of working in a positive way to change the conditions, or resign.

After receiving this memo, Jaffe notified the assistant general manager of the Redmond store that he would take vacation on May 28 and May 29 and would return on May 30 and May 31 to do his next end-of-the-month report. Jaffe indicated that he would then take the following week off. Before taking vacation, Jaffe had a conversation with his doctor. Jaffe admits he did not tell anyone at Kinko’s about any physical or mental health issues.

After Jaffe returned from vacation, he was asked to meet on June 11, 1996 with his general manager and the regional operations manager. At the meeting, Jaffe was placed on a 72-hour administrative leave pending further investigation due to a suspicion that Jaffe violated Kinko’s policies and procedures including the discrepancies in his end-of-the-month reports. Jaffe was instructed to return on June 13, 1996 at 4 p.m. for a meeting in Redmond.

According to the general manager of the Redmond store, at least three specific problems were identified that led to placing Jaffe on administrative leave. First, Jaffe continued to claim commissions for accounts he called on and serviced outside of his territory. Second, Jaffe’s end-of-the-month reports were inaccurate.[3] Third, Jaffe failed to meet internal deadlines regarding the reporting of his “Top 80” list, leading to additional end-of-the-month problems because the general manager refused to recognize a number of accounts claimed by Jaffe.

Following the June 11 meeting, Jaffe was concerned that he was about to be terminated. After the meeting he phoned his physician and made an appointment to see him. He requested a note recommending a leave of absence. The doctor wrote a note on June 13, 1996 stating:

Harv Jaffe is under my care and is being treated with medication. He will be undergoing continued evaluation and will continue with treatment until further notice. I recommend he take a leave of absence from his job at this time.

This note makes no reference to a specific disability or any expected duration.

On June 11 and 12, Jaffe made calls to Kinko’s Human Resources Department in California to inquire about his rights and benefits, including disability benefits and benefits in the event of termination. Jaffe claims he informed the Human Resources Department personnel that he thought he needed a disability leave, but does not claim he advised anyone that he had been diagnosed with a disability or that his doctor recommended a disability leave of absence.

Jaffe called his regional sales manager on June 12 to request a personal meeting before the 4 p.m. meeting on June 13. The regional sales manager agreed to meet with him at 1:30 p.m. on June 13. Jaffe alluded to clearing up problems with the administrative leave, his personal state of affairs, and some official business, but did not inform the regional sales manager about any disability, or his plan to take or request a medical disability leave.

After Jaffe was placed on administrative leave at the time of the June 11 meeting, internal investigations revealed additional reporting discrepancies in Jaffe’s commission calculations.[4] Based on the results of the internal investigation, Kinko’s management decided to terminate Jaffe.

On June 13, 1996, Jaffe arrived to meet with the regional sales manager as planned, but when he arrived he was handed a note from the regional sales manager stating that he was unable to meet with Jaffe at that time. The regional sales manager indicated he would see him at the 4 p.m. meeting. Jaffe asked the regional sales manager’s secretary to accept delivery of a packet of materials which included a note explaining that he planned to take a 90-day medical leave beginning June 14. The packet also contained a response to various issues raised in the June 11 meeting. The regional sales manager did not receive these materials until after the 4 p.m. meeting.

Jaffe was extremely anxious about the fact that the regional sales manager did not meet with him and was concerned that he would not be allowed to take a medical disability leave. He believed that management was plotting against him. He went home and contacted his father, requesting that he accompany Jaffe to the 4 p.m. meeting in Redmond. The general manager, the regional sales manager, and the regional operations manager indicated that Jaffe’s father was not welcome in the meeting. But, after it became obvious that no meeting would take place without including Jaffe’s father, the Kinko’s management team relented. Jaffe told the three men that he was going to take medical leave and that he was on medication. He handed them a packet containing his request for medical leave. Jaffe was told that his paperwork did not change anything as a decision had already been made to terminate his employment. He was given the official reasons, but refused to sign the notice of termination.

Although terminated, Jaffe had his physician complete an attending physician’s statement for disability benefits that Jaffe delivered to Kinko’s on June 14, 1996. Kinko’s returned the paperwork to Jaffe by certified mail indicating that “unfortunately we find ourselves unable to complete it due to termination of your employment.” A copy of the termination statement was enclosed for Jaffe’s records. The termination statement, which Jaffe had refused to sign on June 13, stated the following reasons for Jaffe’s termination:

Failure to provide accurate reporting information related to the following: Quota, and accurate sales totals to include documents (from October of 1994 through April of 1996). Submitting [end-of-the-month] sales reports which reflect duplicated dates creating inflated sales totals.

Jaffe and another Kinko’s co-worker, Gustav Haley, brought suit against Kinko’s and Paul Orfalea, its founder and chief executive officer, asserting claims for age and disability discrimination, wrongful termination in violation of public policy, retaliatory discharge, breach of contract, fraud, negligent misrepresentation, and an accounting. Kinko’s denied the claims and counterclaimed for fraud and unjust enrichment. Kinko’s filed a motion for summary judgment seeking dismissal of Jaffe’s claims on grounds that Jaffe could not meet his burden of proof on any of his claims. After a hearing, the trial court granted summary judgment to Kinko’s. The trial court denied a motion for reconsideration. Jaffe appeals.

DISCUSSION
“When reviewing an order of summary judgment, this Court conducts the same inquiry as the trial court. Summary judgment is proper if pleadings, depositions, affidavits, and admissions, viewed in a light most favorable to the nonmoving party, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.”[5] Once a moving party meets its initial burden of showing there is no dispute as to any genuine issue of material fact,[6] the burden shifts to the nonmoving party to set forth specific facts showing there is a genuine issue of material fact for trial.[7] The nonmoving party must respond with more than opinions, conclusory allegations, argumentative assertions that material facts exist, or conclusory statements of fact.[8]

Specific Burdens of Proof/Production in Wrongful Discharge Cases
Jaffe asserts that he was wrongfully discharged based on claims of age discrimination, disability discrimination, retaliation, and wrongful discharge in violation of public policy. Generally, the central issue in these cases is the employer’s motive. Where the employer’s motive is at issue, Washington courts generally apply a process developed by the U.S. Supreme Court in McDonnell Douglas Corporation v. Green,[9] as later clarified in Reeves v. Sanderson Plumbing Products, Inc.,[10] and adopted in Washington by Hill v. BCTI Income Fund-I.[11] This approach begins by (1) requiring the plaintiff/employee to bear the first immediate burden, namely that of setting forth a prima facie case of discrimination, retaliation, or wrongful discharge in violation of public policy.[12] If a prima facie case is established, a rebuttable presumption of discrimination temporarily takes hold and then (2) the evidentiary burden shifts to the defendant/employer to produce admissible evidence of a legitimate, nondiscriminatory, nonretaliatory reason for the discharge.[13] This is merely a burden of production, not of persuasion.[14] If the defendant/employer fails to meet this production burden, then the plaintiff/employee is entitled to an order establishing liability as a matter of law.[15] But if the defendant/employer meets the burden, the temporary presumption established by the prima facie evidence is rebutted and the presumption is removed. Once the presumption is removed, (3) the burden shifts back to the plaintiff/employee who is afforded the opportunity to show that the employer’s stated reason for the adverse employment action was in fact pretext for what was a discriminatory or retaliatory purpose.[16] If the plaintiff/employee proves incapable of doing so, the defendant/employer is entitled to dismissal as a matter of law.[17] Age Discrimination Applying these principles to the instant case, we first consider whether the trial court erred in dismissing Jaffe’s age discrimination claim. To establish a prima facie case of age discrimination, Jaffe had to produce evidence that he was (1) between 40 and 70 years old, (2) discharged, (3) doing satisfactory work, and (4) replaced by a significantly younger person.[18]

Here, Jaffe was over 40 years old, discharged, and replaced by Jefferson, who was under the age of 40. Although undisputed that Jaffe had been an excellent sales performer, Kinko’s produced a significant amount of evidence that Jaffe’s work performance and adherence to company policy was less than satisfactory. This included his chronic inability to meet internal reporting deadlines and other reasons for his placement on special evaluation status. In addition, his performance was less than satisfactory due to the misrepresentation of his quota and/or the sales figures used to inflate the commissions he indicated were due to him. Once Kinko’s produced this evidence of legitimate nondiscriminatory reasons for Jaffe’s discharge, Jaffe has the burden to establish that Kinko’s reasons were unworthy of belief or a mere pretext for intentional age discrimination.

Jaffe failed to produce any credible evidence that Kinko’s reasons for discharging him were a mere pretext for age discrimination. Jaffe was 44 when he was hired. The only evidence presented was that Jaffe felt the woman who replaced him was younger than he was and that Kinko’s promoted the younger woman, a less experienced, lower cost employee, for the purpose of replacing him. But, as noted above, to overcome the summary judgment motion, Jaffe is required to do more than speculate or make conclusionary statements without providing more. He has failed to provide any real evidence of pretext. The trial court did not err in dismissing the age discrimination claim. Disability Discrimination and Failure to Accommodate

Jaffe claims the trial court erred in dismissing his disability discrimination and failure to accommodate claims. Washington’s Law Against Discrimination (WLAD) protects employees from discrimination based on a disability.[19] Under WLAD it is unlawful for an employer to discriminate against any person in the terms or conditions of employment, or discharge any employee because of the presence of any sensory, mental, or physical disability.[20] To establish a prima facie case of disability discrimination, a plaintiff/employee must show:

(1) The employee had a sensory, mental, or physical abnormality that substantially limited his or her ability to perform the job;

(2) The employee was qualified to perform the essential functions of the job with or without reasonable accommodation, or was qualified to fill vacant positions;

(3) The employee gave the employer notice of the disability and its accompanying substantial limitations; and

(4) Upon notice, the employer failed to reasonably accommodate the employee.[21]

When an employee like Jaffe claims that an employer fired him because of a disability, there must be evidence of the plaintiff’s actual disability and that the condition was the reason for the discharge.[22]
Even assuming, without deciding, that Jaffe has or had some physical or mental condition properly termed a disability,[23] he is required to produce evidence that the disability was the reason for his termination. Jaffe has not done so. More importantly, it is clear that an employer cannot terminate an employee because of a disability unless it actually knows of the disability.[24] The employee bears the burden of notifying the employer of a disability. Thus, absent notice to Kinko’s of Jaffe’s alleged disability, Jaffe could not establish that he was discharged because of his alleged disability.[25] The decision to terminate Jaffe was made before Jaffe provided actual notice of a disability due to depression. And, it was clearly based on his poor performance.

Further, there is no evidence that Kinko’s failed to undertake any measure that was medically necessary to accommodate Jaffe. In fact, no accommodation was requested other than a sudden 90-day leave, and that was requested after the fact. “[T]he duty to reasonably accommodate an employee’s handicap does not arise until the employee makes the employer aware of the disability.”[26] The employee has to show that a reasonable accommodation was available to the employer at the time the physical limitation became known and that accommodation was medically necessary.[27] Kinko’s did not have sufficient timely notice of Jaffe’s alleged medical disability so there was no duty to provide a reasonable accommodation. The trial court was correct in granting summary judgment on this claim.[28]

Retaliatory Discharge
Jaffe asserts the trial court erred in dismissing his retaliation claim on summary judgment. RCW 49.60.210(1) prohibits an employer from discharging an employee because the employee has opposed any unfair labor practices forbidden by WLAD. “To establish a prima facie case for retaliatory discharge, a plaintiff must show that he engaged in statutorily protected activity, that he was discharged, and that retaliation was a substantial factor behind the discharge.”[29]

Jaffe fails to present any evidence that he engaged in any statutorily protected opposition activity under the law against discrimination. He has not produced evidence that retaliation or any other reason was the real reason for his termination, and that the other reasons were mere pretext. Although he asserts that he opposed the discriminatory treatment of one of his co-workers, Jaffe failed to present specific facts supporting that assertion. He asserts that Kinko’s failed to pay him commissions to which he was entitled. However, the record shows that Jaffe was unhappy about Kinko’s commission policies and that he did not like territorial sales restrictions, but also shows Jaffe knew of these policies and restrictions. He presents no evidence that Kinko’s actions were illegal or that his complaints about the commission structure constituted statutorily protected opposition activity. Once again, there is no evidence to show that the reasons for his dismissal were unworthy of belief, contained no basis in fact, or were otherwise pretextual. Jaffe was an employee that believed he was about to be discharged and attempted to forestall the inevitable. The trial court did not err in dismissing this claim on summary judgment.

Wrongful Discharge in Violation of Public Policy
Jaffe asserts that the trial court erred in dismissing his claim for wrongful discharge in violation of public policy. Generally, absent a contract requiring cause for termination, employment relationships in Washington are at-will by either employer or employee.[30] Thus, under the at-will doctrine an employer can with limited exception discharge an employee with immunity.[31] One of the exceptions to the at-will rule is a violation of public policy.[32] The public policy tort exception provides relief for an employee whose discharge contravenes a clear mandate of public policy.[33] The purpose of the exception is to prevent employers from using the at-will doctrine to shield themselves from actions that frustrate public policy.

The exception is not designed to protect an employee’s purely private interest in his or her continued employment. The tort operates to vindicate the public interest in prohibiting employers from acting in a manner contrary to fundamental public policy.[34] Our State Supreme Court has recently recognized that 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.[35]
Four elements are required to prove a wrongful termination tort claim based upon a violation of a public policy:

(1) existence of a clear mandate of public policy (clarity);

(2) jeopardizing the public policy by discouraging the favored conduct (jeopardy);

(3) the public policy linked conduct was the reason for termination (causation); and

(4) the defendant cannot provide an overriding justification for the termination (absence of justification). [36]

Although the existence of public policy is a question of law,[37] to survive a motion for summary judgment, Jaffe has the burden of establishing the existence of a clear mandate of public policy. The public policy must be judicially or legislatively created. Furthermore, the court must be careful to “find” a clear public policy not “create” it.[38] Although not clear from his briefing, Jaffe’s claim seems to be based on assertions that Kinko’s failed to pay him commissions for out-of-territory sales in violation of RCW 49.46.100(2),[39] for opposing the discriminatory termination of a co-worker, and for Kinko’s hiring of a younger salesperson for his territory. A review of the record shows that his vocal and written complaints to Kinko’s management about its commission policies, or Jefferson’s hiring or promotion to a second commercial accounts manager position at the Redmond store, were not made to further any public good, but were made to further Jaffe’s private and proprietary interests. The record also does not support Jaffe’s claim that he necessarily opposed the termination of his co-worker, but his anger was more in the form of additional complaints about a commission he felt he deserved through that employee. As a favor to the co-worker who was on leave and eventually terminated, Jaffe handled some of the co-worker’s out-of-territory accounts at the co-worker’s request. Jaffe was adamant he should be paid the commission.

Even if these claims somehow rise to a level showing the existence of a clear public policy, Jaffe has not shown any link to his dismissal. As stated a number of times previously, Kinko’s is able to offer an overriding justification for the dismissal. Jaffe’s wrongful discharge in violation of public policy tort claim was properly dismissed. Jaffe asserts that it was error for the trial court to grant summary judgment dismissing his claims for breach of contract for unpaid commissions and for violation of wage and hour laws. Jaffe contends that Kinko’s breached his employment contract by failing to provide him with disability benefits or to process the disability paperwork he submitted to Kinko’s on June 14, 1996, the day following his termination. He bases his claim on Kinko’s co-worker handbook. While true that the handbook provides for short-and long-term disability benefits for regular full-time co-workers who are on approved medical leave, Jaffe is unable to show that he was on such an approved leave or complied with the procedures for obtaining a medical leave.[40]

Jaffe claims that his employment agreement lacked terms addressing post-termination commissions and that under the “procuring cause” doctrine, he was entitled to receive post-termination commissions.[41]
However, under the case cited, the standard for receiving post-termination commissions is the employee’s activity that sets the chain of events in motion, eventually culminating in a sale. Jaffe has not identified any sale that transpired due to his work before he was terminated that would result in any post-termination commission.

Following a similar line of argument, Jaffe claims that Kinko’s violated various wage and hour laws relating to record keeping and payment of wages. However, he failed to set forth any specific facts establishing that Kinko’s did not keep wage and hour records or failed to pay any compensation it was legally required to pay. His claims are all based on opinion and conjecture and are insufficient to survive summary judgment. Jaffe asserts that his claims of fraud and negligent misrepresentation, or his claim for an accounting, were dismissed in error.

However, Jaffe has not provided any argument or citation to authority in regard to the dismissal of these claims. Their only mention is in his opening brief in a sentence suggesting that the court bear in mind that he prayed for an accounting in his complaint. This is not sufficient. Assignments of error contained in a brief that are not supported by argument or citation to authority are waived and will not be considered on appeal.[42]

Citing Jackson v. Peoples Federal Credit Union,[43] Jaffe asserts in his opening brief that Kinko’s conduct was outrageous and that his tort claim of outrage should be remanded for trial on liability and damages. Jaffe did not allege a tort of outrage claim in his complaint or raise it to the trial court. He did not raise the issue in opposition to Kinko’s summary judgment motion. This court refuses to review this claim of error that was not pleaded or raised in the trial court.[44]

We affirm the trial court’s dismissal of Jaffe’s complaint by way of summary judgment.

APPELWICK and COX, concur.