Opinion
No. 30076-1-II.
Filed: March 9, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No. 02-2-00027-1. Judgment or order under review. Date filed: 03/07/2003. Judge signing: Hon. Richard D Hicks.
Counsel for Appellant(s), Don Peter William Taylor, Attorney at Law, Prof Arts Bldg, 206 11th Ave SE Ste 1, Olympia, WA 98501-2242.
Counsel for Respondent(s), Elizabeth Ann McIntyre, Law Lyman Daniel Kamerrer et al, PO Box 11880, Olympia, WA 98508-1880.
Reverda Russell appeals from the trial court's dismissal of her wrongful termination lawsuit against Timberland Regional Library, arguing that issues of material fact precluded dismissal, the wrong body terminated her, and her employer denied her procedural due process. We affirm.
FACTS
Timberland hired Russell as a human resources specialist on March 3, 1997. According to Russell, she suffers a "slight disability" due to hearing loss, which she never brought to Timberland's attention. 1 Clerk's Papers (CP) at 175. Timberland discharged Russell, a 52-year-old black woman, on April 30, 2001 for poor and slow work.
Russell filed a lawsuit against Timberland, alleging unlawful discharge based on race, gender, age, handicapped status, and lack of just cause. During pretrial discovery, Russell raised three reasons why she believed that race factored into her discharge.
First, Russell observed that when she was hired, she was the only black person Timberland employed. Second, she noted that Timberland denied her a training opportunity, purportedly due to budget concerns, although a white employee received training, albeit in a different program. Finally, Russell noted that her supervisor, Jena Thrasher, recounted a story about a poor decision made by her son's school superintendent, who was black. Russell believed that Thrasher's racial reference was unnecessary to the story. Russell also asserted that at one point, Thrasher told her "they did not want [you] in the first place." 1 CP at 245.
During her deposition, Russell stated that she was "not really filing [her complaint] because of [her] color." 1 CP at 169. Later in the deposition, Russell explained:
[T]his lawsuit has nothing really to do with my — because of my race. It's that I was totally discriminated against. Total discrimination. Has nothing to do with my color, because that's not something that I harp on, because of my race or because of my gender.
I was discharged without cause and I was discriminated against. And it may be that there was some racial issues in there, which later on, why I think maybe could be race kind of related is because of another statement that Jena did make. And that statement was that because of something, an issue, that came up because of a superintendent, between her and her son. That, then, kind of led me to the fact to believe that she had something against black people, and — but that wasn't my intent.
I don't like to look for — towards saying that because of my color, but that does — did put a tone to that, a flavor to that, the possibility is there that I was dismissed — I mean — had something to do with my color. I don't like to harp on my racial [sic], but it's there.
1 CP at 169-70.
Russell did not recite other pertinent facts supporting her age or gender discrimination claims. But in an affidavit filed January 15, 2003, Russell averred: "It is clear to me that my termination of employment was because of prejudice. It is clear to me that Timberland Regional Library has a plantation mentality which includes a refusal on their part to provide education and training to those they feel are inferior." 1 CP at 242-43.
Also during her deposition, she conceded that she was not contending that her hearing loss was a reason for discharge.
According to Timberland's director, Thelma Kruse, Russell took "a great deal of time to do relatively simple functions and tasks" and sent job announcements, often containing many errors, out at a slow rate. 1 CP at 209. According to Kruse, Russell responded to questions from other employees even when she did not know the answer and disseminated misinformation. It also concerned Kruse that Russell counseled employees to pray about problems they brought to her attention.
Kruse noted that Russell attended 20 seminars or training conferences while employed by Timberland, "more than most other employees." 1 CP at 217. Kruse recalled only one instance where she asked Russell to postpone attending a training seminar. Kruse explained that this was due to budget restrictions, and the seminar occurred at the end of the fiscal year (November 1999). Russell did not reschedule the seminar the following year. Kruse explained that the seminar that the white employee attended around the same time was prepaid, could not be rescheduled, pertained to a more pressing training issue, and required one day of out of town lodging (rather than the two days required for Russell's seminar).
Timberland moved for summary judgment, seeking dismissal of Russell's claims. Russell submitted a memorandum in opposition to the motion and an affidavit, arguing her factual assertions. Russell also objected to several sections of Timberland's declarations on the grounds of hearsay and she attached excerpts of her deposition and samples of her work, and interoffice correspondence from Timberland as exhibits to her affidavit.
In ruling on the motion, the trial court determined that "less than a scintilla of evidence" supported Russell's discrimination claims and granted Timberland's motion for summary judgment as to those claims. Report of Proceedings (RP) (January 31, 2003) at 3. The trial court reserved ruling on whether Timberland terminated Russell for cause. Later, the court, relying on Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 769 P.2d 298 (1989), found that substantial evidence supported Timberland's just cause termination and granted summary judgment dismissing Russell's remaining claims. Russell appeals.
ANALYSIS Discrimination Claims
Russell first contends that the trial court erred in dismissing her wrongful termination claims based on racial, age, gender, and handicap discrimination.
We review an order on summary judgment de novo and engage in the same inquiry as the trial court. Boag v. Farmer's Ins. Co., 117 Wn. App. 116, 121, 69 P.3d 370 (2003). We treat all facts and reasonable inferences in the light most favorable to the nonmoving party, affirming summary judgment only when the moving party is entitled to summary judgment as a matter of law. Boag, 117 Wn. App. at 121-22.
To avoid summary judgment dismissal of an employment discrimination claim, a plaintiff must establish a prima facie case. Milligan v. Thompson, 110 Wn. App. 628, 636, 42 P.3d 418 (2002). In a prima facie employment discrimination case, a plaintiff must show that: (1) she belonged to a protected class; (2) she was discharged or suffered adverse employment action; (3) she had been doing satisfactory work; and (4) she was replaced by someone not in the protected class. Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 188, 23 P.3d 440 (2001); Milligan, 110 Wn. App. at 636. Even when this prima facie standard is met, an employment discrimination claim may be barred when no rational fact finder could conclude that the employer's action was discriminatory. Hill, 144 Wn.2d at 188-89.
All of Russell's discrimination claims fail because she offers no evidence beyond her own assertions and some select examples that she performed satisfactory work. Such bare assertions do not establish a prima facie case. Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359-60, 753 P.2d 517 (1988). A party may not rely on mere allegations, denials, opinions, or conclusory statements but, rather, must set forth specifics indicating material facts for trial. CR 56(e); Grimwood, 110 Wn.2d at 359. Russell fails to do so here and dismissal was appropriate.
Russell submitted examples of her work to the trial court. The trial court noted that "when I reviewed some of her own submissions as examples of her work, they were also full of errors, which was interesting because you would have thought maybe she would have submitted more perfect examples to be used for examples of her work." RP (March 7, 2003) at 3-4.
Russell fails to address whether she performed satisfactory work except to assert that her department was in "chaos" and that she was not given guidance, instruction, or procedure manuals. Appellant's Brief at 15. This argument implies that Russell could not perform satisfactory work due to lack of training. Russell cites no authority for the proposition that a lack of training and guidance obviates the satisfactory performance requirement for a prima facie employment discrimination case.
Termination for Cause
Russell next contends that the trial court erred in dismissing her claim that she was not fired for cause as RCW 27.12.210 required, i.e., that Timberline have just cause to terminate a librarian or librarian's assistant.
RCW 27.12.210 explains: "The trustees, immediately after their appointment or election, shall meet and organize by the election of such officers as they deem necessary. They shall: . . . (3) Employ a librarian, and upon his recommendation employ such other assistants as may be necessary . . . and remove them for cause."
The Washington State Supreme Court defines "just cause" as "a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power." Baldwin, 112 Wn.2d at 139. A discharge based on "just cause" is one not based on "arbitrary, capricious, or illegal reason" but one based on "facts (1) supported by substantial evidence and (2) reasonably believed by the employer to be true." Baldwin, 112 Wn.2d at 139.
Here, even assuming that RCW 27.12.210 applies to Russell, Timberland had just cause to believe that Russell did not perform her job adequately. She completed assignments tardily, coworkers often complained about her to her supervisors numerous times, and her work contained numerous typographical errors. Russell raises nothing but bare assertions to the contrary, and it is clear that a reasonable person would have believed that there was "just case" to terminate Russell. Grimwood, 110 Wn.2d at 359 (CR 56(e) requires evidentiary facts, not ultimate facts or conclusions). RCW 27.12.210
Russell further contends that RCW 27.12.210 accords only the Board of Trustees the right to remove library workers for cause. Russell asserts that because Timberland's director removed her, and not the Board of Trustees, her termination violates RCW 27.12.210.
RCW 27.12.210 states, in relevant part:
The trustees, immediately after their appointment or election, shall meet and organize by the election of such officers as they deem necessary. They shall:
(1) Adopt such bylaws, rules, and regulations for their own guidance and for the government of the library as they deem expedient;
. . . .
(3) Employ a librarian, and upon his recommendation employ such other assistants as may be necessary, all in accordance with the provisions of RCW 27.08.010, prescribe their duties, fix their compensation, and remove them for cause;
We review questions of law and the interpretation of state statutes de novo. Boag, 117 Wn. App. at 123. Our fundamental duty is to implement the legislature's intent, which we derive primarily from the statute's language. Boag, 117 Wn. App. at 123.
Russell focuses on RCW 27.12.210(3) and argues that the Board has sole power to remove a library worker. Section (1), on the other hand, gives the Board the power to adopt bylaws, rules, and regulations, which the Board did:
The Director shall be considered the executive office of the board and shall have sole charge of the administration of the library under the direction and review of the board. The Director shall be held responsible for the care of the buildings and equipment, for the employment and direction of the staff, for the efficiency of the library's service to the public, and for the operation of the library under the financial conditions set forth in the annual budget. The Director shall attend all board meetings.
3 CP at 450.
RCW 27.12.210(1) indicates a legislative intent to give the Board authority to create its own structure and procedures for "guidance and for the government of the library" as the Board "deem[s] expedient." Under this general provision, the Board may delegate (or consolidate) its exclusive authority in one director, here, Thelma Kruse. When two parts of a statute conflict, the more specific part controls over the more general. Gossage v. State, 112 Wn. App. 412, 420, 49 P.3d 927 (2002), review denied, 148 Wn.2d 1012 (2003). And we "construe related statutes harmoniously to bring about a unified statutory scheme that maintains the integrity of the respective statutes whenever possible." Gossage, 112 Wn. App. at 420.
Here, so long as the director remains answerable to the Board, the legislative intent of RCW 27.12.210(3) is preserved. RCW 27.12.210(1) clearly allows the Board to consolidate its power in a director, who then may discharge a library worker. Russell's argument fails.
Russell's Procedural Due Process Rights
Russell finally contends that because she may be discharged only for cause, she has a constitutionally protected property interest in her job entitling her to due process protection.
"[T]he right to a pretermination hearing is a right afforded by the due process clause of the Fourteenth Amendment to the United States Constitution, which may be raised for the first time on appeal." Bullo v. City of Fife, 50 Wn. App. 602, 609, 749 P.2d 749 (1988); RAP 2.5(a)(3). Before Timberland deprives Russell of property, it must give her "notice and an opportunity for hearing appropriate to the nature of the case." Hoflin v. City of Ocean Shores, 121 Wn.2d 113, 128, 847 P.2d 428 (1993).
Procedural due process in the termination of public employees guarantees "some kind of a hearing" before termination. "[I]nformal conferences can satisfy [pretermination hearing] requirements." Danielson v. City of Seattle, 108 Wn.2d 788, 798, 742 P.2d 717 (1987).
Procedural due process entitles Russell to a pretermination hearing, which must include notice of the charges against her, an explanation of Timberland's evidence on these charges, and an opportunity to present her side of the story. Timberland satisfied this due process requirement.
First, Timberland gave Russell a termination notice and its reasons and evidence against her. According to Thrasher's declaration, Russell received a copy of her final performance appraisal, along with the termination recommendation. And Russell received and signed other performance appraisals before her termination that highlighted the same problems with her work performance. Timberland also afforded Russell an opportunity to be heard and to refute the evidence. In fact, Russell attended a meeting the day after she received her termination notice and brought an attorney. Finally, Russell refuted her negative performance appraisals on several occasions.
Timberland did not violate Russell's procedural due process rights because Russell had notice and an opportunity to be heard.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and QUINN-BRINTNALL, A.C.J., concur.