Kim Mikkelsen v. Public Utility District 1 of Kittitas County

FILED
SEPTEMBER 13, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE

KIM MIKKELSEN, )
) No. 33528-3-111
Appellant, )
)
v. )
)
PUBLIC UTILITY DISTRICT # 1 OF ) OPINION PUBLISHED IN PART
KITTITAS COUNTY, JOHN HANSON, )
PAUL ROGERS, and CHARLES WARD, )
)
Respondents. )

SIDDOWAY, J. - Kim Mikkelsen appeals the summary judgment dismissal of her

wrongful discharge and discriminatory discharge claims against the Kittitas County

Public Utility District (PUD), its commissioners, and its former general manager, Charles

Ward. Ms. Mikkelsen worked satisfactorily for 27 years, mostly part time, as the PUD's

finance manager and as an interim general manager. But she does not dispute that within

the first year of Mr. Ward's tenure as general manager, she and he ''just plain didn't get

along." Clerk's Papers (CP) at 380.
 No. 33528-3-111
Mikkelsen v. PUD #1 of Kittitas County

She persuades us that Washington should follow the majority of federal circuit

courts and apply the McDonnell Douglas 1 burden-shifting approach to discrimination

claims without requiring a discharged plaintiff to demonstrate, as part of her prima facie
I
case, that her replacement came from outside her protected class. But it does not avail

her, because she fails to meet her burden at the third step of the McDonnell Douglas

I analysis.

I We address and affirm dismissal of her discrimination claims in the published

I portion of this opinion.

I In the unpublished portion, we address the dismissal of Ms. Mikkelsen's breach of

policy, negligent hiring and supervision, and intentional infliction of emotional distress

claims. Here again, a reasonable trier of fact could reach only one conclusion: her

evidence is insufficient. We affirm the summary judgment dismissal of all of Ms.

Mikkelsen's claims.

FACTS AND PROCEDURAL BACKGROUND

Because we are reviewing the dismissal of claims on summary judgment, we view

disputed evidence in the light most favorable to Ms. Mikkelsen as the nonmoving party.

The Kittitas County PUD, which provides electrical service to Kittitas County and

a small section of Yakima County, has approximately 15 employees. It is administered

1
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d
668 (1973).

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by a three-member board of commissioners. Day-to-day operations are the responsibility

of its general manager.

Kim Mikkelsen was a part-time manager of accounting and finance for the PUD

for 27 years. The part-time nature of the position enabled her to operate a private

consulting business providing services to other utilities on financial, administrative, and

accounting matters. According to her, she would usually be at the PUD two or three days

a week, although there were some times when she would be gone for a full week and

would make up the work the next week. She was compensated on an hourly basis.

In August 2009, after then-general manager Mark Kjelland resigned, Ms.

Mikkelsen was appointed as the PUD's interim general manager. Mr. Kjelland's

resignation followed a whistleblower complaint against him that was filed by four

employees, one being Ms. Mikkelsen. Although the board encouraged Ms. Mikkelsen to

apply for the permanent general manager position, she declined.

During her roughly 10 months as interim general manager, Ms. Mikkelsen helped

organize the nationwide search for Mr. Kjelland's replacement. She researched potential

executive search firms and recommended three to the board. The commissioners decided

to engage Langley & Associates. The firm vetted between 50 and 60 applicants for the

general manager position, performing credential verification, reference, and background

checks. It identified nearly 30 qualified candidates; from those, the board selected seven

to personally interview, one being Mr. Ward. Mr. Ward had 29 years of experience in the

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power industry and had previously been the manager of engineering and operations for

High Plains Power in Riverton, Wyoming. High Plains gave Mr. Ward a favorable

recommendation.

According to Ms. Mikkelsen, she expressed concern to the board before Mr. Ward

was offered the general manager position about how many of his prior positions had been

short-term, including one from which he admitted being fired. The board nonetheless

selected Mr. Ward for the general manager position. It addressed the concern that he

changed jobs too frequently by offering him a bonus should he stay with the PUD for at

least five years.

Also during her time as interim general manager, Ms. Mikkelsen investigated

other utilities' progressive discipline policies and developed a proposed "corrective

action" policy for the PUD. Her proposal was the subject of meetings and discussion by

the board, which adopted a corrective action policy in November 2009. At the time Mr.

Ward assumed the position of general manager, Ms. Mikkelsen had applied the policy

once, giving a verbal warning to a union lineman. Mr. Ward also applied the policy once

during his tenure, again giving a verbal warning to a union lineman.

Mr. Ward assumed the positon of general manager on May 14, 2010, and Ms.

Mikkelsen returned to her position as finance manager. Initially Mr. Ward and Ms.

Mikkelsen worked together without problems. Harmonious relations did not last long,

however.

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In deposition testimony of Ms. Mikkelsen offered in connection with summary

judgment motions in the trial court, she described the deterioration in their relationship:

Q. . .. You start out and you and Mr. Ward are working positively
together. And so what happened from your perspective to the
working relationship?
A. Chuck's management style is such that he has to have someone-he
calls it accountability. I call it blame. Because he doesn't want
anything to come back on him. So he has to have somewhere to
structure his blame.
And it's an unfortunate thing. And it obviously isn't working. But I
was just the recipient of-and I think it's a pattern that will haunt
him until he changes his behavior.

CP at 110. Elsewhere, Ms. Mikkelsen described Mr. Ward's management style as "flash

management," by which she meant he would execute decisions first and think about them

later. CP at 113. She also described his style as "termination and insubordination,"

adding, "There was a lot of 'ations in his speech patterns." CP at 109. She described

herself, by contrast, as a "tell it like it is person," and her own management style as "team

leader." CP at 131, 125.

Mr. Ward initially made Ms. Mikkelsen the acting manager in his absence but

changed that around January 2011, rotating the assignment thereafter between Matt Boast

and Brian Vosburgh, the two other members of the PUD's small management team.

According to Ms. Mikkelsen, "[T]hat didn't bother me. I didn't particularly want the

position." CP at 132.

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By late March 2011, however, Ms. Mikkelsen had grievances she wanted to

discuss with Mr. Ward. She requested a meeting. According to Ms. Mikkelsen, the

subject of the March meeting was what she viewed as a "general communication

breakdown." CP at 114.

Q. So a general communication breakdown between you and Mr.
Ward?
A. That's correct.
Q. Did you think that was a mutual breakdown or was it his fault and
you were just fine?
A. No, every communication breakdown is mutual.
Q. And what about the communication process between you and Mr.
Ward did you think needed work by both of you?
A. I would have liked Chuck to not call me untrustworthy, especially in
front of my contemporaries. I would have liked for Chuck to not
speak over me and disregard anything I had said. I would have liked
for Chuck to study things prior to making decisions that would
impact me.
Id.

Ms. Mikkelsen prepared an outline of issues she wished to cover that she took into

her meeting with Mr. Ward on March 30. She made him a copy at his request. Two

pages and a portion of a third chronicle at least 10 complaints, including that Mr. Ward's

behavior and communication with her were disrespectful; he engaged in

passive/aggressive behavior; he made decisions without knowing the facts; he assigned

duties without considering staff capacity; he reacted belligerently when she suggested his

approach to union negotiations would not be bargaining in good faith and was exposing

the PUD to liability; he unfairly accused her of being untrustworthy and taking "jabs;"

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Mikkelsen v. PUD #1 of Kittitas County

and he rejected her proposal for how to correct employee pay differential errors by prior

management. CP at 333-34. Her memo concluded, "What do you propose to correct this

behavior?" CP at 335. Her only reference to gender or discrimination in the premeeting

memo was in connection with the reference to disrespectful behavior and communication

"toward me, the only woman in a senior management position for the [PUD]." CP at

333.

Ms. Mikkelsen's notes made after the meeting indicate Mr. Ward denied treating

her any differently than other staff members. He said he trusted her and "would have to

start acting differently around [her]." CP at 335. But she noted her disbelief that he

"took ownership of any gender bias or going around [her] to avoid ideas that may not be

in agreement with his." Id.

By June 2011, Ms. Mikkelsen was concerned enough about her and Mr. Ward's

poor relationship that she paid the PUD for a cell phone it had issued to her the prior

year, which she had sometimes used in connection with consulting engagements. She

transferred the phone service contract to her name and planned to return the PUD's

computer and printer she had at her home. According to her notes, she was concerned

that Mr. Ward would "use [the phone] as a weapon against [her] in some manner," or

accuse her of accepting a "gift of public funds." CP at 336. She testified when deposed:

A. My relationship with Chuck had disintegrated substantially ....
It was paranoia on my part.
Q. So by that point, you didn't trust Chuck; is that true?

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A. That's correct.

CP at 123. Her notes indicate, "I ... am losing sleep worrying about my continued

employment." CP at 336.

PUD Commissioner John Hanson called Ms. Mikkelsen on July 24, 2011, and

asked her how things were going at the PUD, telling her he "could tell from the demeanor

in the board room that something was wrong." CP at 83. According to Ms. Mikkelsen,

she told Commissioner Hanson that "all communication had pretty much ceased between

Chuck and I." CP at 85. She told the commissioner that Mr. Ward had been deprecating

to her in staff meetings and spoke over her if she offered an opinion. She told him that

although she met with Mr. Ward to attempt to get him to discuss things, he discounted

their conversations. She told Commissioner Hanson she was afraid Mr. Ward had a

general bias against her as his senior female staff member.

When Commissioner Hanson asked what she would suggest the board do about

the situation, she suggested administering an employee survey, to be answered

anonymously, to see if other employees shared her concerns. Two weeks later,

Commissioner Hanson asked her to forward such a survey, which she did; he then asked

her to forward it to the other commissioners along with a suggestion of a special board

meeting. On Monday, August 8, she e-mailed the proposed survey to the commissioners

with the message, "John has asked me to forward this survey for your review and a

possible Special Board Meeting Thursday or Friday of this week." CP at 248. At the

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Mikkelsen v. PUD #1 of Kittitas County

time, Mr. Ward was out of town for his daughter's wedding and was not expected back

until the following week.

Ms. Mikkelsen did not provide Mr. Ward with a copy of her e-mail or her

proposed survey, even after Commissioner Roger Sparks responded to her e-mail, on the

8th, "Is this something Chuck is considering? Are the survey and the special board

meeting related? If so, I think we should wait until Chuck returns from vacation." CP at

248.

Ms. Mikkelsen's proposed survey contained 8 sections on different aspects of an

employee's work, pay and benefits. Six contained no more than 10 questions; some

contained as few as 5 or 6. Two sections dwarfed the others: the sections on

"Supervisor's Behavior," which contained 18 questions, and the section on the general

manager, which contained 29. Among the questions about the general manager were,

"Conflicts are caused in my organization by our not seeing common interests," "The

General Manager is biased on the basis of gender," "The General Manager handles

authority effectively, not abusively," and "The General Manager keeps informed on

his/her employees' feelings." CP at 249-67.

When deposed, Ms. Mikkelsen admitted Mr. Ward could perceive her suggestion

of this anonymous survey as going around his back:

Q. Weren't you concerned about ... sending this to the commissioners
without [having] advis[ ed your] general manager ... ?

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Mikkelsen v. PUD #1 of Kittitas County

A. Very concerned.
Q. You would imagine that he would think you're going behind his
back, wouldn't you?
A. Which is why I suggested-
Q. Answer the question. Wouldn't you think that?
A. With Chuck, the way Chuck thought, yes.

CP at 96. Asked whether, at this point, "[Y]ou and Mr. Ward just plain didn't get along,

isn't that true?" she answered, "That would be a true statement." CP at 380.

On Mr. Ward's return from vacation, he learned of Ms. Mikkelsen's e-mail and

her proposed survey from Commissioner Sparks. He did view it as going behind his

back. He also viewed it as the "last straw," explaining, "She's undermining my authority.

She's obviously out to get me and make the PUD look bad." CP at 152. Aware of Ms.

Mikkelsen's involvement in forcing Mr. Kjelland to resign, he felt the purpose of her

proposed survey was to have him removed as general manager. After consulting with the

three commissioners, he acted on his decision to terminate Ms. Mikkelsen's employment.

On August 22, 2011, Mr. Ward called Ms. Mikkelsen in for a meeting. Reading

from a script, he told her, "[I]t's not working out," and that her employment was

terminated. CP at 319. When she asked what "it" was, he refused to elaborate, sticking

to his script. Ms. Mikkelsen asked for a copy of her personnel file before leaving the

workplace. It contained no record of warnings or discipline. In responding to the

Employment Security Department's inquiry after Ms. Mikkelsen applied for

unemployment benefits, the PUD responded that she "was an 'at will' employee ...

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terminated without cause." CP at 402. Ms. Mikkelsen was 57 years old at the time she

was fired.

After Ms. Mikkelsen's termination, Genine Pratt, a certified public accountant,

was hired on a contract basis to perform Ms. Mikkelsen's former responsibilities. She

was offered and accepted Ms. Mikkelsen's former position after eight months. Ms. Pratt

was 51 years old at the time of hire.

Ms. Mikkelsen filed suit against the PUD, its commissioners, and Mr. Ward on

November 8, 2011.

The PUD terminated Mr. Ward's employment on December 31, 2011.

Ms. Mikkelsen ultimately alleged she was discharged in violation of the corrective

action policy and that sex and age discrimination were substantial factors in her

termination. She also alleged that the PUD negligently hired and supervised Mr. Ward,

and that the defendants had intentionally inflicted emotional distress on her.

Asked in discovery about evidence of discrimination, she cited her belief that Mr.

Ward treated her differently than he treated the two male members of the PUD's

management team. She also cited the facts that Mr. Ward (1) stated once in a union

meeting that "if the board would buy him uniforms, he'd be happy to wear them just so

long as they weren't pink;" (2) referred to the outside crew as "the crew" but referred to

the office staff (all women) as "the ladies or the girls;" (3) would, upon entering her

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office, "reach into his pockets and rearrange his genitals" before taking a seat; and finally

(4) stated on the day he fired her, "Now, don't you make a scene." CP at 86-88.

As evidence of age discrimination, Ms. Mikkelsen stated Mr. Ward had described

a long-term employee as "old and stale" and that he had a fixation on the age of a 72-

year-old staff member. CP at 90.

Ms. Mikkelsen acknowledges that at no time before filing suit did she notify Mr.

Ward or the PUD commissioners that she was offended by Mr. Ward's references to

"ladies," "old and stale" employees or his stated unwillingness to wear a pink uniform.

She never said anything to Mr. Ward about her objections to his practice of putting his

hands in his pockets when he sat dowh in her office.

Following the conduct of discovery, all defendants moved for summary judgment

as to all claims. The trial court granted their motions and dismissed the complaint. Ms.

Mikkelsen appeals.

ANALYSIS

Ms. Mikkelsen appeals dismissal of each of her four claims.

When reviewing a grant of summary judgment, we engage in the same inquiry as

the trial court. Marincovich v. Tarabochia, 114 Wn.2d 271, 274, 787 P.2d 562 (1990).

Summary judgment is appropriate if "there is no genuine issue as to any material fact and

... the moving party is entitled to a judgment as a matter of law." CR 56(c). "The court

must consider the facts in the light most favorable to the nonmoving party, and the

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Mikkelsen v. PUD #1 ofKittitas County
II
I motion should be granted only if, from all the evidence, reasonable persons could reach

I
I
but one conclusion." Marincovich, 114 Wn.2d at 274. We may affirm summary

judgment dismissal of a claim on any basis supported by the record. LaMon v. Butler,

112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989).

We first address dismissal of Ms. Mikkelsen's discrimination claims and then turn

to the others in the order presented in Ms. Mikkelsen's amended complaint. 2

I. Discriminatory discharge

Ms. Mikkelsen claims that in discharging her, Mr. Ward discriminated based on

her sex and age. Under the Washington Law Against Discrimination (WLAD), ch. 49.60

RCW, "[i]t is an unfair practice for any employer ... [t]o discharge ... any person from

employment because of age, [or] sex." RCW 49.60.180(2).

Ms. Mikkelsen admits to having no direct evidence that Mr. Ward intentionally

discriminated against her on the basis of sex or age, but she argues that she presented

evidence sufficient to survive summary judgment under the indirect, burden-shifting

framework articulated by the United States Supreme Court in McDonnell Douglas and

adopted by Washington courts in, e.g., Grimwood v. Univ. ofPuget Sound, Inc., 110

Wn.2d 355, 362, 753 P.2d 517 (1988).

2
Mr. Ward claims individual immunity from certain of Ms. Mikkelsen's claims
under RCW 54.12.110, and that he cannot be liable for the asserted breach of a PUD
contract. Because we affirm the dismissal of all claims on the merits we need not reach
his additional, individual defenses.

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Mikkelsen v. PUD #1 of Kittitas County

Under the three-step McDonnell Douglas analysis, a plaintiff bears the initial

burden of establishing a prima facie case of discrimination, thereby creating a

presumption of discrimination. Scrivener v. Clark Coll., 181 Wn.2d 439,446,334 P.3d

541 (2014). If the plaintiff presents a prima facie case, the burden of production shifts to

the employer to articulate a legitimate, nondiscriminatory reason for the adverse

employment action. Scrivener, 181 Wn.2d at 446. If the defendant meets this burden,

the plaintiff must produce evidence sufficient to create a genuine issue of material fact

either (1) that the employer's reason is pretextual or (2) that although the stated reason is

legitimate, "discrimination nevertheless was a substantial factor motivating the

employer." Id. at 446-4 7. "If the plaintiff 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." Id. at 446.

The trial court dismissed Ms. Mikkelsen's discrimination claims relying on

Washington cases stating that a prima facie case of discriminatory discharge is

established by showing that the employee ( 1) was within a statutorily protected group; (2)

was discharged by the defendant; (3) was doing satisfactory work; and (4) was replaced

by someone outside the protected group-or, in the case of age discrimination, by

someone "significantly younger." Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 188, 23

P.3d 440 (2001) (age discrimination); Domingo v. Boeing Empls. Credit Union, 124 Wn.

App. 71, 80, 98 P.3d 1222 (2004) (sex discrimination). It is undisputed that Ms.

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Mikkelsen v. PUD #1 ofKittitas County

Mikkelsen was replaced by a woman only six years younger than she was when

discharged.

Ms. Mikkelsen admits she cannot prove replacement by someone outside her

protected class but argues that McDonnell Douglas and other decisions of the United

States Supreme Court do not support that fourth, replacement element. After reviewing

federal cases, we are persuaded that she is correct. We believe our own Supreme Court,

which adopted the replacement element before it was critically examined by federal

courts, would agree.

McDonnell Douglas was a failure-to-hire case, not a case complaining of a

discriminatory discharge. It described a complainant's initial burden of establishing a

prima facie case of racial discrimination as

showing (i) that he belongs to a racial minority; (ii) that he applied and was
qualified for a job for which the employer was seeking applicants; (iii) that,
despite his qualifications, he was rejected; and (iv) that, after his rejection,
the position remained open and the employer continued to seek applicants
from persons of complainant's qualifications.

411 U.S. at 802 (emphasis added). It added, by footnote, "The facts necessarily will vary

in Title VII cases, and the specification above of the prima facie proof required from

respondent is not necessarily applicable in every respect to differing factual situations."

Id. at n.13.

In Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.

Ct. 1089, 67 L. Ed. 2d 207 (1981), the Supreme Court elaborated on the plaintiffs

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Mikkelsen v. PUD #1 of Kittitas County

ultimate and intermediate burdens, observing that the ultimate burden of proving

intentional discrimination "remains at all times with the plaintiff." It described the

intermediate evidentiary burdens as bringing the litigants and the court "expeditiously

and fairly to this ultimate question." Id.

Importantly, it observed that "[t]he burden of establishing a prima facie case of

disparate treatment is not onerous," yet it serves an "important function" of

"eliminat[ing] the most common nondiscriminatory reasons for the plaintiffs rejection."

Id. at 253-54. As articulated in McDonnell Douglas, 411 U.S. at 802, the second element

of the prima facie case-that the plaintiff "applied and was qualified for a job for which

the employer was seeking applicants"--eliminates cases where the employer has no

employment vacancy and cases where an applicant lacks the qualifications sought in an

employee. The fourth element-"that, after his rejection, the position remained open and

the employer continued to seek applicants from persons of complainant's qualifications"

--eliminates cases where the employer changes its mind either about the qualifications

sought (ruling out the plaintiff as a candidate) or about whether to fill a vacancy at all.

The prima facie case as articulated in McDonnell Douglas does not require the

complainant in a failure-to-hire case to show that the person hired to replace him was

from outside his protected class.

As federal courts translated the elements of a prima facie failure-to-hire case from

McDonnell Douglas to a discriminatory discharge case, at least some translated its fourth

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Mikkelsen v. PUD #1 of Kittitas County

element as proof that the plaintiff was replaced with someone outside the protected class.

We have not attempted to trace that federal history, but can trace Washington's adoption

of the replacement element to Roberts v. Atlantic Richfield Co., 88 Wn.2d 887, 568 P.2d

764 (1977), in which age discrimination under the WLAD was alleged. Noting that

"[w ]e have not had occasion to delineate the evidence necessary to establish a prima facie

case," the court relied on a Fifth Circuit case to hold that a prima facie case of age

discrimination is established by showing that a plaintiff"' was within a protected class,

was asked to take early retirement against his will, was doing apparently satisfactory

work, and was replaced by a younger person .... '" Id. at 892 (quoting Wilson v.

Sea/test Foods Div. of Kraflco Corp., 501 F.2d 84, 86 (5th Cir. 1974)).

Nine years later, relying on Roberts, our Supreme Court affirmed dismissal of a

plaintiff's age discrimination case because he failed to establish as part of his prima facie

case that he was replaced by someone outside the age group protected by the WLAD.

Brady v. Daily World, 105 Wn.2d 770, 777, 718 P.2d 785 (1986). The employee in

Brady did not challenge the replacement element.

Two years thereafter, in Grimwood, our Supreme Court cast mild doubt on the

replacement element when it pointed to the First Circuit Court of Appeals' disagreement

with replacement as an element of a prima facie case, stating "In Loeb [v. Textron, Inc.,

600 F.2d 1003 (1st Cir. 1979)], the court ... points out that the element of replacement

by a younger person or a person outside the protected age group is not absolute; rather,

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the proof required is that the employer 'sought a replacement with qualifications similar

to his own, thus demonstrating a continued need for the same services and skills.'" 11 O

Wn.2d at 363 (emphasis added) (quoting Loeb, 600 F.2d at 1013). By saying the

replacement element "is not absolute" rather than that it is not an element, the Supreme

Court invited its continued application. 3

Following Roberts, Brady, and Grimwood, Washington courts have for the most

part included the replacement element in applying the McDonnell Douglas framework to

discriminatory discharge cases. No Washington case has examined its growing rejection

by federal courts.

The United States Supreme Court has not squarely addressed whether replacement

by an employee outside the protected class is an appropriate element of a prima facie case

in applying the McDonnell Douglas framework, but two of its decisions are cited as

suggesting the high court's disapproval of the element. St. Mary's Honor Center v.

3
The language "is not absolute" may understate Loeb's rejection of the
replacement element. What Loeb says is that "[t]he prima facie case described in
McDonnell Douglas did not include proof that some person outside the protected class
was hired in complainant's place." 600 F.2d at 1013. Elsewhere it states:
A correct statement of the elements of a McDonnell Douglas prima facie
case, adapted to present circumstances, therefore would have been that
Loeb had to prove that he was in the protected age group, that he was
performing his job at a level that met his employer's legitimate
expectations, that he nevertheless was fired, and that [his employer] sought
someone to perform the same work after he left.
600 F.2d at 1013-14.

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Hicks, 509 U.S. 502, 506-08, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993) involved the

outcome of a bench trial, and among the district court's findings recounted by the Court

(although not relevant to the issue on appeal) was its finding that the plaintiff, a black

man, established a prima facie case of discriminatory discharge by demonstrating among

other elements that he was replaced by a man who was white. The four-member dissent

took pains to point out in a footnote:

The majority, following the courts below, mentions that Hicks's
position was filled by a white male. Ante, at 506 (citing the District Court's
opinion); see 970 F.2d 487,491, n. 7 (CA8 1992). This Court has not
directly addressed the question whether the personal characteristics of
someone chosen to replace a Title VII plaintiff are material, and that issue
is not before us today. Cf. Cumpiano v. Banco Santander Puerto Rico, 902
F. 2d 148, 154-155 (CAI 1990) (identity of replacement is not relevant).

Id. at 527 n.1.

Several years later, the Supreme Court held that the fact that a discharged

employee suing under the Age Discrimination in Employment Act (29 U.S.C. § 623

(a)(l)) was replaced by someone outside the protected class was not a proper element of

the McDonnell Douglas prima facie case. 0 'Connor v. Consol. Coin Caterers Corp., 517

U.S. 308, 116 S. Ct. 1307, 134 L. Ed. 2d 433 (1996). The decision may not be as

consequential for present purposes as it sounds, because Justice Scalia's opinion for the

unanimous court allowed that "the fact that a replacement is substantially younger than

the plaintiff' would be an indicator of age discrimination, but "the fact that the plaintiff

was replaced by someone outside the protected [40 years or older] class" was not. Id. at

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313 (emphasis added). Explaining that "there must be at least a logical connection

between each element of the prima facie case and the illegal discrimination for which it

establishes a ' ... presumption,'" the opinion stated that an element of "replacement by

someone under 40 fails this requirement." Id. at 311-12 ( quoting Burdine, 450 U.S. at

254 n.7).

Some courts, including our Supreme Court in Hill, concluded that O'Connor

merely requires modifying the replacement element of the prima facie age discriminatory

discharge case to require a showing of replacement by a "significantly younger"

employee rather than by an employee "outside the [over-40 class]." 144 Wn.2d at 188 &

n.10. But some federal circuit courts read more into Justice Scalia's statement elsewhere

in the opinion that, "The fact that one person in the protected class has lost out to another

person in the protected class is thus irrelevant, so long as he has lost out because of his

age." 517 U.S. at 312. They construe that statement as recognizing that in any

discrimination case a plaintiff can be the victim of discrimination and at the same time

"lose out" to someone in his or her own protected class. E.g., Carson v. Bethlehem Steel

Co., 82 F.3d 157, 158 (7th Cir. 1996); Pivirotto v. Innovative Sys., Inc., 191 F.3d 344,

354-55 (3d Cir. 1999).

Given this history, the overwhelming majority of federal circuit courts that have

examined the issue have concluded that a discharged employee should not have to

demonstrate that she was replaced with someone outside of her protected class as part of

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No. 33528-3-111
Mikkelsen v. PUD #1 of Kittitas County

the McDonnell Douglas prima facie case. Almost all of them did so after our Supreme

Court's decisions in Roberts (1977), Brady (1986), and Grimwood (1988). See

Cumpiano, 902 F.2d at 154-55 (a First Circuit decision); Meiri v. Dacon, 759 F.2d 989,

995-96 (2d Cir. 1985); Pivirotto, 191 F.3d 344 (Third Circuit); Nieto v. L&H Packing

Co., 108 F.3d 621 (5th Cir. 1997); Jackson v. Richards Med. Co., 961 F.2d 575,587 n.12

(6th Cir. 1992); Carson, 82 F.3d 157 (Seventh Circuit); Walker v. St. Anthony's Med.

Ctr., 881 F.2d 554, 558 (8th Cir. 1989); Perry v. Woodward, 199 F.3d 1126 (10th Cir.

1999); Howard v. Roadway Express, Inc., 726 F.2d 1529, 1534 (11th Cir. 1984). See

also John v. Calderon, 1996 WL 557658 (N.D. Cal. 1996). Some of the circuit courts

have eliminated the replacement element altogether, some have said that it need not

always be applied, and the position of some appears to lie somewhere in between. 4

The Tenth Circuit Court of Appeals was the last of the foregoing decisions,

reviewed the others, and elected to eliminate the element altogether. We find its

reasoning persuasive. As it observed, those courts that have not eliminated the element-

but also do not require it-require a plaintiff to substitute "some additional fact from

which an inference of discrimination can arise" but without "giv[ing] any examples of

4
An annotation seeks to sort out the rationales, although it includes the positions
of some of the courts in all three categories. Eric C. Suette, Annotation, Requirement of
Replacement by Nonprotected Individual To Establish Prima Facie Employment
Discrimination under 42 US.CA.§ 1981, Title VII of the Civil Rights Act (42 US.CA.§
2000e-(a)(l)) and Americans with Disabilities Act (42 US.CA.§ 12112(a)), 172 A.LR.
FED. 465 (2001).

21
No. 33528-3-111
Mikkelsen v. PUD #1 of Kittitas County

what evidence would be sufficient to give rise to such an inference[,] ... result[ing] in

too much uncertainty for the district courts and the parties." Perry, 199 F.3d at 1139.

Elsewhere, it explained:

Supreme Court precedent fully supports [the] conclusion that the
termination of a qualified minority employee raises the rebuttable inference
of discrimination in every case in which the position is not eliminated ....
The employer has the opportunity to dispel the inference by articulating a
legitimate, non-discriminatory reason for terminating the employee. In
meritless cases, the plaintiff will be unable to show that the employer's
articulated reason is pretextual, and summary judgment will then be entered
for the defendant.

Id. at 1140.

Having reviewed Washington decisions applying the WLAD, we find no reason

why we should reject the majority federal view that replacement is not an essential

element of the prima facie case, and we find a good reason for embracing it. In several

cases, Washington courts have excused plaintiffs from demonstrating the fourth element

on ad hoc rationales. In Hatfield v. Columbia Federal Savings Bank, 57 Wn. App. 876,

790 P.2d 1258 (1990), overruled on other grounds by Burnside v. Simpson Paper Co.,

123 Wn.2d 93, 864 P.2d 937 (1994), a decision of this court, there were disputed facts

over whether the discharged employee was replaced, and if so, by whom. Relying on the

statement in Grimwood that it did not intend the four elements identified in Roberts to be

"'rigid, mechanized, or ritualistic,' or the exclusive method of proving a claim," the court

excused proof of the replacement element, citing a treatise's suggestion that the element

22
No. 33528-3-III
Mikkelsen v. PUD #1 ofKittitas County

could be dispensed with "' in cases where the plaintiff has introduced direct or

circumstantial evidence of discriminatory intent.'" Id. at 882 (quoting Grimwood, 11 O

Wn.2d at 363 and B. SCHLEI & P. GROSSMAN, EMPLOYMENT DISCRIMINATION LAW

498-99 (2d ed. 1983).

In Callahan v. Walla Walla Housing Authority, 126 Wn. App. 812, 110 P.3d 782

(2005), this court refused to apply the replacement element in a disability discrimination

case, explaining:

Replacement by a person outside the protected class is relevant when one
member of the class is much like another. But disabilities differ widely.
Replacing a plaintiff who has a burdensome disability with a person less
inconveniently disabled does not eliminate the possibility that the disability
was a substantial factor.

Id. at 820 & n.1.

Allowing trial courts to require or dispense with the replacement element any time

they believe it to be "rigid, mechanized, or ritualistic" in a given case is no guidance at

all. Like the Tenth Circuit in Perry, we believe that the current State of Washington law

results in too much uncertainty for trial courts and parties.

Where a discharged employee is replaced by someone within the protected class, it

will not be overlooked in the McDonnell Douglas analysis. It is relevant evidence,

helpful to the employer, that will bear on the step three determination of whether a

plaintiff claiming discrimination has established that the employer's proffered reason was

23
~

I
1
No. 33528-3-111
Mikkelsen v. PUD #1 ofKittitas County

t
i pretext or that discrimination was a substantially motivating factor in the employment

decision.

II Absent a holding on this issue by our Supreme Court, we adopt this refinement of

the McDonnell Douglas framework by the federal courts for the same reason Washington

courts found it helpful to adopt that framework in the first place.

Application to this case

Since we have excused Ms. Mikkelsen from demonstrating the fourth element of

the prima facie case, she satisfies the first step of the McDonnell Douglas analysis. The

burden of production shifts to the PUD to show that it had a legitimate, nondiscriminatory

reason for terminating her employment. Scrivener, 181 Wn.2d at 446. It states that Ms.

Mikkelsen was discharged because "' it just wasn't working out,'" and "[a]fter a complete

and mutual communication breakdown, [Mr. Ward and Ms. Mikkelsen] lost trust in one

another and it became clear that they could no longer work together." Br. ofResp't PUD

at 1. This satisfies the defense burden of articulating a legitimate, nondiscriminatory

reason for the firing. Cf Briggs v. Nova Services, 166 Wn.2d 794, 805, 213 P.3d 910

(2009) (corporate board behaved reasonably when it empowered its executive director to

terminate the employment of other managers who complained about her performance and

were unable to work with her).

With the defense burden of production satisfied, the presumption established by

the prima facie case "drops out of the picture." Hicks, 509 U.S. at 510-11. The burden

24
No. 33528-3-111
Mikkelsen v. PUD #1 ofKittitas County

shifts back to Ms. Mikkelsen to show that the PUD's reason is pretextual or that

discrimination nevertheless was a substantial factor motivating the employer.

Undisputed evidence, including much of Ms. Mikkelsen's own testimony,

established that her and Mr. Ward's conflicting management styles led to a "general

communication breakdown" that was both logically and temporally related to Mr. Ward's

decision to discharge her. Ms. Mikkelsen nonetheless attempts to show pretext by getting

into the weeds of the specific conflicts she had with Mr. Ward over the 15 months they

worked together and arguing that she, not he, was right-or at least there is a dispute.

But it is the defendants who get to articulate the reason for her discharge, not Ms.

Mikkelsen, and it relies on the overarching discord and loss of trust in a small

management team-the fact that "it just wasn't working out," as she admits being told

when she was fired and as she alleged in her amended complaint. 5 She cannot show that

the PUD's reason was pretextual because her own testimony supports it.

5
We do not find the defendants to have been inconsistent about the reason for
termination, either. Mr. Ward admitted the allegation of13.8 of Ms. Mikkelsen's
amended complaint that "[t]he reason offered to justify the termination was that' ... it
was just not working out.'" CP at 9. Ms. Mikkelsen now focuses on a memorandum that
Mr. Ward prepared to document their history and moves directly to its historical detail,
but she skips over the first paragraph, which summarizes his reasons for the termination.
The first paragraph of Mr. Ward's memo is entirely consistent with the defendants'
position that the termination was because of the management discord. See CP at 242
("Kim's actions and attitude toward me ... is a disruption to the workplace," "It is
getting worse and it will not get any better," "She undermines my authority," "I am
unable to trust her anymore," "Without this trust, I am unable to perform my function as
the General Manager as I should be able to."). In explaining the termination, it has not

25
No. 33528-3-111
Mikkelsen v. PUD #1 ofKittitas County

What remains is whether she can show that discrimination nevertheless was a

substantial motivating factor. An employer is entitled to summary judgment at this stage

"if the plaintiff 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 occurred." [(quoting Reeves v.
Sanderson Plumbing Prods., 530 U.S. 133, 148, 120 S. Ct. 2097, 147 L.
Ed. 2d 105 (2000))]. Whether summary judgment is appropriate in any
particular case depends on a variety of factors, including "the strength of
the prima facie case, the probative value of the proof that the employer's
explanation is false and any other evidence that supports the employer's
case and that properly may be considered." Id.

Pratt v. City of Houston, 247 F.3d 601,606 (5th Cir. 2001); 6 accord Hill, 144 Wn.2d at

184-85.

At step three of the McDonnell Douglas framework, Ms. Mikkelsen faces the

uncontroverted evidence that the PUD replaced her with a 51-year-old woman,

undercutting any inference that her sex or age were motivating factors in her termination.

She confronts the fact that her own testimony provides strong support for the legitimate,

nondiscriminatory reason offered by the PUD for her discharge. Against this strong

evidence that no discrimination occurred, Ms. Mikkelsen offers only speculation and

been inconsistent for Mr. Ward to talk about the history leading up to the management
friction as well.
6
Pratt points out that although Reeves was based on a motion for judgment as a
matter of law, the summary judgment standard is the same. Pratt, 247 F.3d at 606 n.3.

26
No. 33528-3-III
Mikkelsen v. PUD #1 of Kittitas County

evidence from which no discriminatory animus can reasonably be inferred.

Ms. Mikkelsen's subjective belief that Mr. Ward terminated her because of her sex

cannot be the basis for judicial relief. Hornsby v. Conoco, Inc., 777 F.2d 243, 247 (5th

Cir. 1985). Nor can speculation about a defendant's motivation. Barker v. Advanced

Silicon Materials, LLC, 131 Wn. App. 616, 624, 128 P.3d 633 (2006); Hines v. Todd Pac.

Shipyards Corp., 127 Wn. App. 356, 372, 112 P.3d 522 (2005). Even accepting her

testimony that Mr. Ward treated her differently from the two male members of the

management team, differing treatment could be explained by Mr. Ward's and her

conflicting management styles, growing pattern of disagreements, or even because unlike

the other members of the team, she was a part-time employee. Lacking any evidence that

Mr. Ward treated any other female employees differently from men, or any statement by

him denigrating female workers or managers, it is sheer speculation on her part that he

treated her differently because she was a woman. 7

Evidence of references to women as "ladies" or "girls" can be "ambiguous at best

and ... not reveal any hostility or animus toward women." Creech v. Ohio Cas. Ins. Co.,

944 F. Supp. 1347, 1358 (S.D. Ohio 1996); accord Caldwell v. ServiceMaster Corp., 966

F. Supp. 33, 50 (D.D.C. 1997) (the words "gal" and "girl" were not reasonably construed

7
Ms. Mikkelsen testified when deposed that Brian Vosburgh once said to her,
speaking of Mr. Ward, that "he's got a guy/girl thing with you." CP at 87. She offered
no testimony of Mr. Vosburgh in opposing summary judgment. Her inadmissible
testimony is useless on the issue.

27
No. 33528-3-111
Mikkelsen v. PUD #1 of Kittitas County

by the plaintiffs as sexually demeaning); Wilcoxon v. Minn. Mining & Mfg. Co., 235

Mich. App. 347,368, 597 N.W.2d 250 (1999) (fact that manager referred to office

workers as "girls," even if they were older than him, could have nothing to do with racial

or sexual animus); Hadeed v. Abraham, 265 F. Supp. 2d 614, 622 (E.D. Va. 2003), ajf'd,

103 F. App'x 706 (4th Cir. 2004) (defendants' reference to two female prospective home

purchasers as "girls" may be distasteful, but it does not rise to the level of unlawful

discrimination). Ms. Mikkelsen does not demonstrate why we should regard Mr. Ward's

use of the terms "ladies" or "girls" as being anything more than outdated. She even

admitted when deposed, "I don't know that it was inappropriate" to refer to the all-female

office staff as "ladies," but "I just thought it would be more appropriate to refer to them

in something other than a gender specific role." CP at 87.

We also do not understand why Mr. Ward's stated unwillingness to wear a pink

uniform is characterized by Ms. Mikkelsen as a discriminatory remark. We understand

that pink remains a color associated with women, reinforced through current breast

cancer awareness campaigns, and that the implication is that Mr. Ward didn't want to

wear what he viewed as a feminine color-or was at least joking that he didn't. What we

don't understand is why that reveals hostility or animus toward women. When asked in

deposition what she found inappropriate about the statement, Ms. Mikkelsen answered,

unenlighteningly, "Chuck had a problem with women in general." CP at 86.

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No. 33528-3-111
Mikkelsen v. PUD #1 of Kittitas County

As to Mr. Ward's statement about her not making a scene after being fired, the

defense submissions supporting summary judgment include an August 26 file

memorandum by Mr. Ward on how Ms. Mikkelsen's termination was handled, in which

he admits making the statement and describes how and when it occurred. CP at 398. His

memorandum stated in part:

After the meeting Kim went to her office. The first thing she told
Nickie was I have just been fired. I heard Kim say that and asked her to
please not make a scene. Kim said she would not.

CP at 399. We have been directed to nowhere in the record that Ms. Mikkelsen disagrees

with that account. When asked in deposition why she felt Mr. Ward's statement about

making a scene was inappropriate, she answered only, "I rather doubt he would have said

something like that to my male contemporaries." CP at 88.

Her only evidence of ageist comments during her 15 months of working with Mr.

Ward was offered in deposition after being asked, "[W]as there ever a statement made to

you that supports your contention that you were terminated because of your age?" She

answered yes, and recounted a statement Mr. Ward had made about an employee being

"old and stale" that she found offensive:

Q. Did Mr. Ward identify who he was talking about?
A. Gerard.
Q. And how old was Gerard at the time of this statement?
A. He was in his 50s, late 50s, when he retired, I think.
Q. And so what exactly do you recall Mr. Ward saying about Mr.
Gerard?

29
I
I
I
i
No. 33528-3-III
Mikkelsen v. PUD #1 of Kittitas County

J
I A. I can't say exactly. I can just say that Gerard had worked there for a

I lot of years and he made a comment that he just-it's just amazing
that he could only work for one employer in all those years.

I Q.
A.
Q.
So what does that have to do with age?
In order to work all those years, you got to be old.
So any other statement ... by Mr. Ward that you feel support[s]
your contention that you were fired because of your age.
A. That's it. If I have others, I am-I don't recall them right now.

CP at 89-91. She did not recall others during her deposition. She did testify that Mr.

Ward had a "fixation" on the age of 72-year-old PUD employee Nickie Buchanan,

explaining that Ms. Buchanan told her Mr. Ward seemed to be very focused on her age.

Id. at 90. No testimony of Ms. Buchanan was offered in opposition to summary

judgment.

Not only do we find these remarks, occurring over a 15-month period, to be

unpersuasive evidence of a discriminatory attitude on Mr. Ward's part, but there is no

evidence that any employee ever found them objectionable enough to raise them under

the PUD's sexual harassment policy. As Ms. Mikkelsen's materials point out, the PUD's

then 20-year-old policy stated, "Prompt action shall be taken when a question or situation

is brought to the attention of the appropriate person." CP at 558.

Last is Ms. Mikkelson's claim that when Mr. Ward came into her office, "prior to

his taking a seat, he would reach into his pockets and rearrange his genitals." CP at 88.

As far as we can tell from the record, the first time this was brought to the attention of

anyone at the PUD was when Ms. Mikkelsen was deposed on June 19, 2014. It was not

30
No. 33528-3-111
Mikkelsen v. PUD #1 ofKittitas County

reflected in the memorandum and notes of complaints she maintained during her

employment. She admits she never raised it with Mr. Ward. When deposed, she claimed

reluctance to raise it ("I had not wanted to say this, but I'm going to have to .... I find it

offensive that I even have to say that."). CP at 88. Whether because of her stated

reluctance or for some other reason, none of the lawyers asked her for more specific

information or detail. Absent information from which to determine whether any

reasonable person in Ms. Mikkelsen's position would have viewed Mr. Ward's conduct

as evidence of misogyny or as simply a man hoping to sit without discomfort, we cannot

treat it as evidence of a discriminatory animus.

The evidence of discrimination Ms. Mikkelsen offers is insufficient to permit a

rational finder of fact to infer that the termination of her employment by Mr. Ward was

more likely than not substantially motivated by discrimination.

Affirmed.

A majority of the panel having determined that only the foregoing portion of this

opinion will be printed in the Washington Appellate Reports and that the remainder

having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it

is so ordered.

II. Breach ofpolicy

Ms. Mikkelsen next contends her discharge without notice or progressive

discipline violated the corrective action policy adopted by the PUD commissioners in

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No. 33528-3-III
Mikkelsen v. PUD #1 of Kittitas County

November 2009. While an employment contract indefinite in duration is ordinarily

terminable at will in Washington, she relies on two exceptions to the rule that our

Supreme Court first recognized in Thompson v. St. Regis Paper Co., 102 Wn.2d 219,

233, 685 P.2d 1081 (1984). The first exception is based on contractual modification.

The second is based on promises of specific treatment in specific situations, on which an

employee justifiably relies.

Contract modification theory of enforceability

Under the first exception, an employer's issuance of a manual or policy may

modify an employment contract where "the requisites of contract formation, offer,

acceptance and consideration" establish that the new manual or policy has become part of

a modified employment contract. Id. at 228. Focusing on the elements of contract

formation and breach are key to avoiding confusion between Thompson's contract

modification and justifiable reliance theories for enforcing employer policies. DePhillips

v. Zolt Constr. Co., 136 Wn.2d 26, 35-36 & n.5, 959 P.2d 1104 (1998). "The difference

is clear when the elements of the causes of action are compared." Id. at 36.

"To establish a modification, the party asserting the modification must show,

through the [words] [or] [conduct] of the parties, that there was an agreement of the

parties on all essential terms of the contract modification, and that the parties intended the

new terms to alter the contract." See 6A WASHINGTON PRACTICE: WASHINGTON

PATTERN JURY INSTRUCTIONS: CIVIL 301.07, at 212 (6th ed. 2012) (WPI); Swanson V.

32
I
f
1

I No. 33528-3-III

I Mikkelsen v. PUD #1 of Kittitas County

f
Liquid Air Corp., 118 Wn.2d 512, 523-24, 826 P.2d 664 (1992); Amoco Prod. Co. v.

Houghton Energy Corp., 11 F. Supp. 2d 1270, 1278 (D. Kan. 1998) ("An agreement to

modify a contract is itself a contract."). Generally, a modification requires consideration

or a mutual change in obligations and rights. Dragt v. Dragt/De Tray, LLC, 139 Wn.

App. 560, 576, 161 P.3d 473 (2007); WPI 301.07, cmt. But cf RESTATEMENT (SECOND)

OF CONTRACTS § 89 (AM. LA w INST. 1981) (identifying when modification of executory

contracts may be binding without consideration).

In Swanson, contract modification was established where the employer prepared a

memorandum of working conditions to quell employee dissent and discussed it

extensively with affected employees over a period of two days. 118 Wn.2d at 515-16.

The promise was "specific enough to constitute an enforceable contract term" and the

employer "almost certainly offered the Memorandum in consideration for the employees'

promise not to unionize and the employees almost certainly accepted it in consideration

for the forgoing of their legal right to unionize." Id. at 524.

Although the question of whether an employer has made a contract offer is a

question of fact, "if reasonable minds cannot differ as to whether language sufficiently

constitutes an offer ... as a matter of law the claimed promise cannot be part of the

employment relationship." Id. at 522.

A claim that an employer has made a contract offer can fail as a matter of law

when it is directly negated by other communications by the employer, as illustrated by

33
No. 33528-3-III
Mikkelsen v. PUD #1 ofKittitas County

Kuest v. Regent Assisted Living, Inc., 111 Wn. App. 36, 51, 43 P .3d 23 (2002). In Kuest,

an express disclaimer in the employee's original employment contract stated that her

employment was at will and that the employer's policies did not constitute a contract.

She was thereafter given a supervisor's manual containing a progressive discipline policy

and was instructed to use it; at about the same time she received an employee manual that

repeated the disclaimer included in her contract. Although she argued that the

progressive disciplinary policy and instructions to use it modified her at-will

employment, the court held-based on the disclaimer and the absence of consideration-

that "[m]aterial facts are not at issue regarding all the required elements of contract

formation" and that the trial court properly dismissed the claim. Id.

In this case, a number of provisions of the corrective action policy negate any

possibility that by adopting and publishing it, the PUD's commissioners were offering to

modify the at-will nature of Ms. Mikkelsen's employment. For present purposes, one

provision of the policy is sufficient to dispel that argument:

The rules set out here are intended only as guidelines, and do not give any
employee a right to continued employment or any particular level of
corrective action.

CP at 346 (Corrective Action Policy§ 2). As a matter oflaw, Ms. Mikkelsen's at-

will employment was not modified by the commissioner's adoption of the policy.

34
No. 33528-3-III
Mikkelsen v. PUD #1 of Kittitas County

Promises ofspecific treatment

The second exception to the terminable at-will character of employment for an

indefinite term exists where

an employer, for whatever reason, creates an atmosphere of job security and
fair treatment with promises of specific treatment in specific situations and
an employee is induced thereby to remain on the job and not actively seek
other employment, those promises are enforceable components of the
employment relationship.

Thompson, 102 Wn.2d at 230 (emphasis omitted). In recognizing this exception, the

Thompson court observed that an employer can write policies using language that "may

not amount to promises of specific treatment and merely be general statements of

company policy and thus, not binding." Id. at 231. "Moreover, the employer may ...

write them in a manner that retains discretion to the employer." Id.

The elements of a justifiable reliance claim are ( 1) a promise contained in an

employee manual or handbook or the like, (2) the employee's justifiable reliance, and (3)

breach by the employer. DePhillips, 136 Wn.2d at 35. "In particular, the justifiable

reliance element takes the claim out of the traditional contract realm." Id.

The PUD's corrective action policy can be read only as general statements of a

discretionary company policy. Its first page states:

1.1 Corrective Action

Corrective action should be fair. This means, while the District
retains the discretion to determine what action is appropriate in any
particular situation, the corrective action should be equal with the

35
No. 33528-3-111
Mikkelsen v. PUD #1 of Kittitas County

misconduct or performance deficiency at issue, and whenever
possible, performance issues typically should be addressed, at least
initially, with an eye to improvement.

CP at 343 ( emphasis added).

The second page states:

2.0 Reasons for Corrective Action

These are only guidelines. To be able to respond appropriately to
whatever particular circumstances may arise in the future, the
District must[] reserve the right to determine the categorization of,
and response to, any conduct or performance concern, regardless of
where it falls within the broad parameters set forth below.

CP at 344 (emphasis added).

As already observed, the fourth page of the policy states that "[t]he rules set out

here are intended only as guidelines, and do not give any employee a right to continued

employment or any particular level of corrective action." CP at 346. Elsewhere, it states:

3.0 Corrective Action

... However, this is only a guideline. The District does not promise
employees a specific formula of corrective action will be followed in
every instance. Different circumstances warrant different responses.
Unless otherwise prohibited by law, when the District concludes an
employee has not adhered to its standards or performance otherwise
is unsatisfactory, the District may take the corrective action it
decides is appropriate under the circumstances, which may involve
any one or combination of the steps identified below, up to and
including immediate discharge without prior corrective action or
notice.

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No. 33528-3-111
Mikkelsen v. PUD #1 of Kittitas County

CP at 346 (emphasis added). Finally, in listing different types of corrective action, the

policy identifies the type of conduct or offense in connection with which each is

"generally" used. CP at 346-4 7.

There is only one use of mandatory language in the entire policy: paragraph 1.3,

which states, "Corrective action must be administered with due consideration of, and

respect for, employee rights and expectations, whether those rights and expectations

derive from employment policies, operation oflaw, or contract." CP at 344 (emphasis

added). As an example, it cites a union employee's contractual right to union

representation.

Although "must" is mandatory, two things diminish the significance of the

statement. The first is that it appears in a policy that makes the PUD's use of corrective

action optional. In context, the provision means that if corrective action is used, then it

must be administered with due consideration of employee rights and expectations.

The second is that unlike the PUD's union-represented employees, Ms. Mikkelsen

cannot point to any "right or expectation" that needed to be considered or respected in

taking corrective action against her. Her employment contract was terminable at will; she

does not rely for her breach of policy claim on any right arising from "operation of law;"

and the corrective action policy itself takes pains to avoid creating employee rights or

expectations by emphasizing its discretionary character.

37
No. 33528-3-III
Mikkelsen v. PUD #1 of Kittitas County

In using almost entirely discretionary language and one inconsequential

mandatory term, the PUD's policy is like others that Washington courts have held, as a

matter of law, to make no enforceable promise of specific treatment. See, e.g., Quedado

v. Boeing Co., 168 Wn. App. 363,372,276 P.3d 365 (2012) (company policies did not

promise that it would adhere to a matrix of recommended disciplinary sanctions); Trimble

v. Wash. State Univ., 140 Wn.2d 88, 95, 993 P.2d 259 (2000) (nature of performance

evaluation was discretionary); Drobny v. Boeing Co., 80 Wn. App. 97, 105, 907 P.2d 299

(1995) (policy retained employer's discretion to discharge employees without progressive

discipline); McClintick v. Timber Prods. Mfg., Inc., 105 Wn. App. 914, 922, 21 P.3d 328

(2001) (employment guidebook contained "no terms such as 'shall,' 'will,' or 'must' that

indicate the practice is mandatory"). 8 Summary judgment dismissal of the breach of

policy claims was appropriate.

III. Negligent hiring and supervision

Ms. Mikkelsen next argues that the PUD negligently hired and supervised Mr.

Ward.

A negligent supervision claim requires showing: (1) an employee acted
outside the scope of his or her employment; (2) the employee presented a
risk of harm to other employees; (3) the employer knew, or should have
known in the exercise of reasonable care, that the employee posed a risk to

8
Given the clearly discretionary language of the policy, the fact that it had been
applied to two employees, neither presenting a problem of discord and friction at the
management level, adds nothing to Ms. Mikkelsen's argument.

38
No. 33528-3-111
Mikkelsen v. PUD #1 of Kittitas County

others; and (4) that the employer's failure to supervise was the proximate
cause of injuries to other employees.

Briggs v. Nova Servs., 135 Wn. App. 955, 966-67, 147 P.3d 616 (2006), aff'd, 166 Wn.2d

794, 213 P.3d 910 (2009). The only "difference between negligent hiring and negligent

retention is the time at which the employer's negligence occurs." Peck v. Siau, 65 Wn.

App. 285, 288, 827 P.2d 1108 (1992).

Ms. Mikkelsen contends the PUD negligently hired Mr. Ward because it knew of

his work history, which included short-tenure jobs. But there is no evidence of the

reasons for Mr. Ward's moves from one job to another, and the PUD hired Langely &

Associates to vet potential candidates and contact references. Asked in her deposition

about any mistakes the board made in the hiring process, Ms. Mikkelsen conceded, "I

don't think this is the board's fault. I think it's the headhunter." CP at 127. She also

admitted that Mr. Ward's references were checked but she understood that prior

employers did not tell the truth. As a matter of law, she demonstrates no negligence in

the PUD's hiring of Mr. Ward.

Ms. Mikkelsen claims negligent supervision of Mr. Ward because she informed

Commissioner Hanson of the way Mr. Ward was treating her, thereby putting the PUD on

notice, and yet he took no action. By her own report, she spoke with Commissioner

Hanson on July 24, 2011. She was fired on August 22. She does not identify any action

outside the scope of Mr. Ward's employment as general manager that he took during that

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II

I No. 33528-3-111
! Mikkelsen v. PUD #1 of Kittitas County
I!
I less than one month time frame, during which most of which he was out of town for his

I
!
daughter's wedding.

She also does not identify any injury proximately caused by actions outside the
I
II scope of Mr. Ward's authority during that time frame. Injury is an element of the claim.

I Although she baldly states, "There is no question as to the proximate cause issue," Brief

I!' of Appellant at 49, she appears to be referring to the fact that Mr. Ward fired her. Firing
I
I
!
her was within the scope of Mr. Ward's authority. See RCW 54.16.100 ("The manager
I
shall ... hire and discharge employees under his or her direction"). If wrongful, it can be

I the basis of vicarious liability, but it cannot be the basis of a negligent supervision claim.
i LaPlant v. Snohomish County, 162 Wn. App. 476, 271 P.3d 254 (2011).
I
I Summary judgment dismissal of the negligent hiring and supervision claims was
I
I
I
proper.
I
! IV. Intentional infliction of emotional distress
I
i
I Finally, Ms. Mikkelsen claims Mr. Ward and the PUD are liable for intentional

infliction of emotional distress in the form of Mr. Ward's discrimination; his firing her

from her job, which resulted in lost income and a loss of insurance and retirement

benefits; and negative statements about her performance that made their way into local

news reports and other materials available on the Internet.

To establish a claim of intentional infliction of emotional distress, the plaintiff

must show (1) outrageous and extreme conduct by the defendant, (2) the defendant's

40

I
No. 33528-3-111
Mikkelsen v. PUD #1 ofKittitas County

intentional or reckless disregard of the probability of causing emotional distress, and (3)

actual result to the plaintiff of severe emotional distress. Commodore v. Univ. Mech.

Contractors, Inc., 120 Wn.2d 120,135,839 P.2d 314 (1992). "Liability exists 'only

where the conduct has been so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.'" Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d

291 (1975) (emphasis omitted) (quoting RESTATEMENT (SECOND) of TORTS§ 46 cmt. d.

(AM. LA w INST. 1965)). Liability "' does not extend to mere insults, indignities, threats,

annoyances, petty oppressions, or other trivialities.' In this area plaintiffs must

necessarily be hardened to a certain degree of rough language, unkindness and lack of

consideration." Id.

When the conduct a plaintiff complains of is within a defendant's legal rights, it is

privileged, whether or not extreme and whether or not the defendant is aware that

insisting on his legal rights is certain to cause emotional distress. RESTATEMENT

(SECOND) OF TORTS§ 46 cmt. g. The PUD can have no liability, then, for terminating

Ms. Mikkelsen's at-will employment even if Mr. Ward and the commissioners could

foresee that losing her job, and the related loss of benefits, would cause her emotional

distress.

The trial court serves a "gatekeeping role" in determining what qualifies as

outrage. Steinbock v. Ferry County Pub. Util. Dist. No. 1, 165 Wn. App. 479,492,269

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No. 33528-3-III
Mikkelsen v. PUD #1 of Kittitas County

P.3d 275 (2011). Even viewed in the light most favorable to Ms. Mikkelsen, her

evidence does not raise a jury question. Losing a long-term job and being unfavorably

described by a former employer could, of course, be upsetting, but that and the other

conduct about which she complains amount, at most, to indignities, annoyances, rough

language, unkindness, or lack of consideration. They are not beyond all possible bounds

of decency. Compare Strong v. Terrell, 147 Wn. App. 376, 195 P.3d 977 (2008)

(affirming summary judgment dismissal where supervisor screamed at employee daily;

criticized her work; told "dumb blonde" jokes; ridiculed her personal life; and disparaged

her house, her husband's job, and her decision to place her son in therapy), with Grimsby,

85 Wn.2d 52 (husband was required to watch helplessly as his wife suffered and died).

Ms. Mikkelsen's evidence of her emotional distress also fails to raise a genuine

issue of fact. Objective symptomatology is not required to demonstrate severe emotional

distress. Kloepfel v. Bokor, 149 Wn.2d 192, 198, 66 P.3d 630 (2003). "Severe emotional

distress is, however, not 'transient and trivial' but distress such 'that no reasonable man

could be expected to endure it.'" Id. at 203 (quoting RESTATEMENT (SECOND) OF TORTS

§ 46 cmt. j.).

Ms. Mikkelsen's conclusory characterization of her emotional distress relies

chiefly on worry and concern arising from financial setback from termination of her

employment, but since the termination of her employment is not actionable, resulting

distress is not compensable. Especially after setting that aside, her report of

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No. 33528-3-111
Mikkelsen v. PUD #1 of Kittitas County

embarrassment, humiliation, anger, grief, and worry do not rise to the unendurable level.

Compare Brower v. Ackerley, 88 Wn. App. 87, 943 P.2d 1141 (1997) (finding issue of

fact where plaintiff experienced acute anxiety, secured his house, gathered his wife and

cats in an upstairs bedroom, was nervous, unable to sleep, was very agitated and upset for

days, and was afraid to appear in public), with Spurrell v. Bloch, 40 Wn. App. 854, 701

P .2d 529 ( 1985) (no issue of fact where plaintiffs claimed a sleepless night, tears, loss of

appetite, and anxiety after their children were removed from their home without

notification).

Again, summary judgment dismissal was proper.

Affirmed.

WE CONCUR:

m;,J. I j

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