IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DEBI O'BRIEN, a married woman, )

r...3

c=

--0

(7.

Col cy

w.,.:

_c_..

Appellant,

)

)

DIVISION ONE c.1.)

-,-;

....-0Etom._ 

v.

)

)

No. 74367-8-1 —

......

• •

..,_:, _

CD CD •-••

HUGH KOSKINEN, a single man, ) UNPUBLISHED OPINION

.... :Z.: <

—

MATT PURVIS and JANE DOE )

PURVIS, and the marital community )

thereof, DAN LAWSON and JANE DOE)

LAWSON, and the marital community )

thereof, PAULETTE KETZA and JOHN )

DOE KETZA, and the marital )

community thereof, ROD HOWERY )

and JANE DOE HOWERY, and the )

marital community thereof, and VIVIAN )

SMITH and JOHN DOE SMITH, and the)

marital community thereof, )

Defendants,

LEONARD CARDER and JANE DOE

CARDER, and the marital community

thereof, and ABM INDUSTRIES

("ABMI") and ABM PARKING

SERVICES (d/b/a "Ampco" and ABM

Onsite Services West),

)

Respondents. ) FILED: April 3, 2017

)

DWYER, J. — Debi O'Brien appeals from orders entered in the King County

Superior Court sanctioning, pursuant to Civil Rule (CR) 11, her and her attorneys

and dismissing, pursuant to CR 56(c), her claims against Leonard Carder, ABM
No. 74367-8-1/2

Parking Services, Inc., and ABM Industries Incorporated (ABMI). O'Brien

contends that the superior court erred by imposing sanctions on the basis that

she had not brought her claims against four individuals in a good faith effort to

extend the law but, rather, for the improper purpose of forum shopping. O'Brien

also contends that the superior court erred by denying her motion for a

continuance of the summary judgment hearing and by dismissing her claims.

There was no error. We affirm.

1

A

O'Brien was hired by ABM Parking in 2007. ABM Parking is a corporation

providing parking management services nationwide to owners of office

complexes and surface lots. O'Brien was tasked with human resources

coordination and operations management for the Seattle/Bellevue branch. In

2009, pursuant to her responsibilities as a human resources coordinator, O'Brien

was asked by Hugh Koskinen, senior branch manager for the Seattle/Bellevue

branch, to investigate a complaint made by Melody Dillon regarding sexually

inappropriate conduct by two ABM Parking valets and, later, to discipline the

valets for their conduct. O'Brien complied.

In 2010, as part of an ABM Parking customer service initiative and

pursuant to her responsibilities as operations manager, O'Brien was asked to

regularly visit parking locations managed by the Seattle/Bellevue branch of ABM

Parking, conduct a "walk-through" inspection of those locations, and document

improvements needed to be made thereto. This request was made by Koskinen

2
No. 74367-8-1/3

and Leonard Carder, then-regional vice president of ABM Parking. In addition to

O'Brien, other ABM Parking managers were also asked to conduct these

inspections. At the time, O'Brien stated that she believed that the parking

locations managed by ABM Parking were unsafe. Over several months, O'Brien

failed to complete the assigned number of inspections and Dan Lawson, her

direct supervisor, wrote two disciplinary memoranda regarding her conduct.1

Beginning in 2012, pursuant to her responsibilities as operations manager,

O'Brien was asked by Carder and Matt Purvis, assistant branch manager for

ABM Parking's Seattle/Bellevue branch, to help with concerns regarding one of

their client's parking locations, the Pacific Place Garage (PPG). They requested

that O'Brien assist in investigating PPG's unusually high balance for its accounts

receivable as well as reports from clients that they were not being billed for their

customers' parking validations. O'Brien found several issues with the operation

of PPG, including a validation stamp in the billing system without a name

assigned to it and numerous individuals with outstanding balances for their

monthly parking permits. Purvis instructed O'Brien to attempt to collect the

unpaid balances but her efforts to coordinate such action with the manager of the

PPG were unsuccessful.

1 During the course of her employment, O'Brien was also disciplined for other conduct:

for becoming angry with Koskinen when he asked her about a potential conflict of interest

regarding a coworker with whom she had a personal relationship, for leaving the office frequently

at 2 p.m. without explanation, for spending too much time speaking with her coworkers during the

work week, for failing in her responsibility to assign valets to work an event—resulting in a

"tremendously unhappy" client—and for making disparaging comments about Koskinen to coworkers.

3
No. 74367-8-1/4

In August 2012, O'Brien was assigned to work at the Spokane Fair. As

part of its yearly contract with the Fair, ABM Parking assigned a group of salaried

employees to assist with parking. O'Brien had last been assigned to work at the

fair in 2009.2 After learning that she was assigned to work the fair in 2012,

O'Brien sent an e-mail to Paulette Kezta, manager of ABM Parking's operations

at the Spokane Fair. In her e-mail, O'Brien expressed her apprehension about

standing on her feet for the long shifts, explaining that she was "not young

anymore" and that "[t]he older I get the more issues I get with standing long

hours." Ketza responded to O'Brien, saying that ABM Parking was trying to

avoid having its employees work the 15-hour shifts that had been worked in the

past and was hoping to avoid those long hours by increasing its staffing for the

fair. O'Brien thanked Ketza, replying that "all of my needs have been met!" At

the fair, O'Brien worked 8 hours on one day and 12 hours on two other days.

While there, O'Brien did not communicate additional concerns about standing

and, afterward, explained only that she worked pretty long hours and was tired

when she got back.

Starting in 2012, ABM Parking began to see revenues from its

Seattle/Bellevue branch decline. It lost several bids to renew parking contracts in

the Seattle and Bellevue area. The City of Seattle notified ABM Parking that it

was not renewing its contract for the PPG—a contract worth $20,000 per month

2 When O'Brien was assigned to work at the Spokane Fair in 2009, she requested to be

excused from doing so. ABM Parking complied.

4
No. 74367-8-1/5

in revenue. In addition, due to advances in automation at the branch's clients'

parking locations, it became less necessary for ABM Parking to have employees

"out in the field."

Consequently, Rod Howery, the new regional vice president for ABM

Parking,3 began to look for ways to reduce the Seattle/Bellevue branch's

administrative expenses. He discussed the potential elimination of positions with

Madeline Kwan, human resources director for ABM Parking. They identified two

positions: O'Brien's human resources and operations management position and

the position of Ken Eichner, an auditor. Both worked at the Seattle/Bellevue

branch. They determined that O'Brien's human resources duties could be

performed by human resources employees at the San Francisco branch and that

her operations management duties could be assigned to hourly employees at

specific parking locations. O'Brien's parking location inspection duties were not

re-assigned to another manager.4

Howery and Kwan planned to proceed with the layoffs in October 2012.

However, they did not do so until the following year. They desired to notify

O'Brien and Eichner in person but were unable to coordinate a time prior to

December when both would be in the Seattle/Bellevue branch office. Then,

because they wished to avoid giving a termination notice during the holiday

season, they waited until early February 2013 to do so.

3 In 2012, Carder, the previous regional vice president, was promoted to the position of

executive vice president, with nationwide duties.

4 Eichner's audit duties were to be taken on by the San Francisco branch's audit

manager.

5
No. 74367-8-1/6

In January 2013, Kwan discussed the termination decision for O'Brien's

and Eichner's positions with Vivian Smith, vice president of human resources for

ABM1.5 Smith's services were part of a human resources support agreement

between ABM Parking and ABMI in which ABM Parking could submit to ABMI

facts and information pertaining to a termination decision and have ABMI's

human resources personnel review the decision for red flags. Smith and Kwan

discussed the termination decision during a telephone conversation and Smith

approved the decision.

On February 6, 2013, Howery and Kwan met with Eichner and O'Brien in

Seattle and informed them that their positions were being eliminated. O'Brien

recalled that Kwan told her "[t]hat we had lost some locations, and so they were

reorganizing and had to eliminate my position." As planned, ABM Parking did not

hire a new employee to replace O'Brien and her duties were either eliminated or

taken on by other employees.

In October 2013, O'Brien sued ABM Parking and ABMI (ABM Defendants)

in the King County Superior Court alleging age discrimination, retaliation, and

associational discrimination pursuant to Washington's Law Against

Discrimination (WLAD), chapter 49.60 RCW, as well as wrongful termination,

breach of contract, and intentional infliction of emotional distress. One month

later, the ABM Defendants removed the case to federal court. United States

District Court Judge John C. Coughenour was assigned to the case. As their

5 ABM Parking is an indirect wholly owned subsidiary of ABMI.

- 6 -
No. 74367-8-1/7

reason for removal, the ABM Defendants cited complete diversity of citizenship

between the parties6 and an alleged amount in controversy exceeding the federal

jurisdictional minimum.

O'Brien then amended her complaint to join a Washington resident,

Carder, as a defendant. O'Brien then moved to remand the case back to the

King County Superior Court, asserting that Carder's residential status destroyed

the federal district court's diversity jurisdiction. In response, the ABM Defendants

filed a motion to dismiss the claim against Carder, arguing that he was not an

indispensable party to the litigation. The district court granted the ABM

Defendants' motion and Carder was dismissed from the case.

For the next year and a half, between November 2013 and March 2015,

the federal lawsuit continued with the parties conducting discovery.7 During that

time, O'Brien requested and received two trial continuances.

Then, in March 2015, with four depositions scheduled and less than a

month remaining until discovery was set to close, O'Brien moved to voluntarily

dismiss her federal action against the ABM Defendants. O'Brien explained that

she had discovered grounds to bring an action in state court against several of

the ABM Defendants' individual managers and supervisors. Meanwhile, ABM

6 O'Brien is a Washington resident, ABMI is a New York-based corporation, organized

under Delaware law, and ABM Parking is an Ohio-based company, organized under California

law.

7 O'Brien propounded 17 interrogatories, submitted 52 requests for production, and

conducted 7 depositions. Also during this period, O'Brien twice requested that sanctions be

imposed against the ABM Defendants due to alleged "discovery abuse" in their responses to her

discovery requests. The district court denied O'Brien's sanction requests. Also during this time,

the ABM Defendants moved for judgment on the pleadings pursuant to Federal Rule of Civil

Procedure (FRCP) 12(c). The district court resultantly dismissed with prejudice O'Brien's claims

of retaliation, associational discrimination, and wrongful termination in violation of public policy.

- 7 -
No. 74367-8-1/8

Parking and ABMI each moved for summary judgment as to O'Brien's remaining

claims. The district court granted O'Brien's motion and dismissed her action

without prejudice.8 It thus did not entertain the summary judgment motions.

In the same month that O'Brien moved to dismiss her federal action

against the ABM Defendants, O'Brien filed a new lawsuit in the King County

Superior Court against five individuals associated with ABM Parking: Carder,

Koskinen, Purvis, Ketza, and Lawson, along with each of their marital

communities. Shortly thereafter, the five individual defendants notified O'Brien

that they intended to seek CR 11 sanctions unless O'Brien withdrew her claims

against Lawson and Koskinen and her claims for breach of contract and

promissory estoppel. They alleged that O'Brien's claims against Lawson and

Koskinen were barred by the applicable statute of limitations8 and that her breach

of contract and promissory estoppel claims against each of the individuals were

baseless because they had no involvement in establishing ABM Parking's

policies. O'Brien responded to the CR 11 notice, denied the individual

defendants' arguments, and, one week later, amended her new complaint to add

two more individuals, Howery and Smith, and their marital communities, as

defendants.1°

One month later, the now seven individual defendants moved to dismiss

O'Brien's action against them pursuant to CR 12(b)(6), with a hearing set for July

8 In May 2015, O'Brien filed an appeal of the district court's FRCP 12(c) order and its

discovery sanction order. She dismissed her appeal shortly thereafter.

9 Both Lawson and Koskinen had left their employment with ABM Parking in 2010.

10 O'Brien also amended her complaint to add a claim for tortious interference.

- 8 -
No. 74367-8-1/9

2, 2015. In response, O'Brien moved to amend her complaint a second time,

seeking to add ABM Parking and ABMI as defendants. Her request was granted,

but the superior court interlineated on its order that, "Permission to amend does

not mean the Court may not later dismiss some or all of these claims on the

bases argued — and the Court may, in fact, even ask itself 'What Would Judge

Coughenour Do?"

O'Brien then amended her complaint to include ABM Parking and ABMI as

defendants. Five days after that, and nearly a month before the upcoming

hearing on the motions to dismiss, O'Brien voluntarily dismissed all claims

against six of the individual defendants—Koskinen, Lawson, Purvis, Howery,

Smith, and Ketza." At this point, the remaining defendants in the superior court

case were Carder, ABM Parking, and ABMI.

Those defendants then removed the case to federal court, again

identifying Carder as a sham, not indispensable, defendant who was sued only to

defeat diversity jurisdiction and seeking his dismissal as a defendant. However,

United States District Court Judge Thomas S. Zilly denied the defendants' motion

to dismiss the claims against Carder, determining that O'Brien "stated a

theoretically plausible claim against him" and remanded the case to the King

County Superior Court.

One week later, the defendants moved in superior court for sanctions

based on O'Brien asserting claims against the individual defendants, averring

11 Howery and Smith were dismissed from the case without ever having been personally

served with a summons and complaint.

9
No. 74367-8-1/10

that the individuals "were but mere pawns in [O'Brien's] counsel's improper forum

shopping scheme." This was so, the defendants argued, because the individuals

were included in the 2015 superior court litigation only to enable O'Brien to

litigate against ABM Parking and ABMI in the state court forum notwithstanding

that the companies had, in 2013, successfully removed O'Brien's first state court

action to the federal district court. O'Brien opposed the motion for sanctions. In

her opposition pleadings, however, she did not proffer factual allegations

implicating the four individual defendants or legal analysis to support her

assertion that the claims alleged against the individual defendants were made in

compliance with CR 11.

The superior court granted the defendants' motion for sanctions. The

superior court found that O'Brien never submitted any factual allegations or legal

analysis in support of her claims against Lawson, Koskinen, Purvis, and Ketza.

The superior court also found that O'Brien dismissed these defendants several

days after she was granted permission to add ABM Parking and ABMI as

defendants in the second state court action. From this and the procedural history

in the federal court action, the superior court concluded that the four individuals

had been sued in state court for the improper purpose of forum shopping. The

superior court ordered that O'Brien and her attorneys pay sanctions in the

amount of legal costs incurred by the individual defendants in defending in the

second state court lawsuit. The superior court indicated that it would issue a

further order upon written submissions.

- 10-
No. 74367-8-1/11

O'Brien requested that the superior court reconsider its sanctions ruling,

and, for the first time in a legal filing to the court, made legal arguments in

support of her claims against the individual defendants. Her request for

reconsideration was denied.

Carder, ABM Parking, and ABM1 each then filed a motion for summary

judgment. O'Brien filed a brief in opposition to summary judgment, supported by

a declaration from O'Brien, and moved for a continuance of the summary

judgment hearing so that she could conduct additional discovery. The

defendants, meanwhile, filed a motion to strike O'Brien's declaration. After oral

argument, the superior court issued an order striking portions of O'Brien's

declaration, denying O'Brien's motion for a continuance, and granting each

defendant's summary judgment motion.

The superior court next issued a second order on the defendants' motion

for sanctions. It imposed a sanction of $6,500 on O'Brien and her attorneys.

The superior court re-emphasized that it was granting sanctions on the basis

that, by failing to submit factual allegations and legal argument in defense of its

claims against the four individual defendants, O'Brien never attempted to make a

good faith argument to extend existing law.12 Instead, the superior court noted,

O'Brien's inclusion of those individual defendants in the lawsuit was "in service of

a concerted effort at forum shopping and, therefore, was 'for an improper

purpose."

12 Indeed, prior to the order granting summary judgment dismissal of all claims against all

remaining defendants, O'Brien had never asked the court to rule that the existing law should be

modified or extended.
No. 74367-8-1/12

O'Brien now appeals from both the CR 11 rulings and the grants of

summary judgment.

11

O'Brien asserts that the superior court erred by imposing sanctions on her

and her attorneys on the basis that the claims alleged in the pleadings filed

against Lawson, Koskinen, Purvis, and Ketza were filed for an improper purpose.

O'Brien is wrong.

We review a superior court's sanction decision for abuse of discretion.

Engstrom v. Goodman,166 Wn. App. 905, 917, 271 P.3d 959 (2012) (citing

Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 338,

858 P.2d 1054 (1993)). "A trial court abuses its discretion when its order is

manifestly unreasonable or based on untenable grounds." Fisons, 122 Wn.2d at

339. "The purpose of [CR 111 is to deter baseless filings and curb abuses of the

judicial system."13 Skimming v. Boxer, 119 Wn. App. 748, 754, 82 P.3d 707

(2004) (citing Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 448 (1994)). "A filing

is 'baseless' when it is '(a) not well grounded in fact, or (b) not warranted by (i)

existing law or (ii) a good faith argument for the alteration of existing law."

MacDonald v. Korum Ford,80 Wn. App. 877, 883-84,912 P.2d 1052 (1996)

(quoting Hicks v. Edwards,75 Wn. App. 156, 163, 876 P.2d 953 (1994)).

13 This rule establishes that the signature of a party or attorney on a pleading constitutes

a certificate by that party or attorney that the pleading is well grounded in fact, warranted by

existing law, or by a good faith argument for a change to existing law, is not interposed for an

improper purpose, and contains only factual contentions or denials warranted by the evidence.

CR 11(a). When a pleading is signed in violation of the rule, "the court, upon motion or upon its

own initiative, may impose upon the person who signed it, a represented party, or both, an

appropriate sanction," which may include reasonable attorney fees and expenses. CR 11(a).

- 12 -
No. 74367-8-1/13

Here, the superior court's first order granting the request for sanctions

read, in pertinent part:

A review of the history of this litigation in both state and

federal court, leaves it readily apparent that there was no

defensible reason for treating these individuals in the manner they

were. It is particularly noteworthy that no facts or legal theory have

even been put forth in response to this motion. . . .

. . . [Al just resolution of the dispute between plaintiff and the

employer should have been reached by now in federal court. Any

such resolution was prevented by the procedural machinations in

which these four individuals were ill-used as unwilling and

unfortunate pawns. Once leave was granted in May to add

plaintiffs former employer to this lawsuit (accomplishing the desired

— but previously thwarted — result of a transfer of the primary case

against the corporate defendants from federal to state court), these

four individuals (as well as Howrey [sic] and Smith who were never

served) were promptly dropped from the suit. That their

involvement was so quickly proclaimed to be unnecessary is a

compelling demonstration that it had always been unnecessary.

This Court concludes that the bringing of claims against

these four individual defendants (Koskinen, Lawson, Purvis and

Ketza and their marital communities) was in clear violation of CR

11

In its second order, the court re-emphasized:

a. Many of the claims against these individuals were not wellgrounded in fact or warranted by existing law and a reasonable

inquiry would have made this clear; there has not been offered

any way in which these individuals could have been found liable

under the plaintiff's contract with her employer nor has there

been any explanation of why the statute of limitations would not

bar a 2015 lawsuit based upon actions taken no later than 2010.

b. By its previous reference to the "procedural machinations in

which these four individuals were ill-used as unwilling and

unfortunate pawns," the Court meant to indicate that their

inclusion in the lawsuit was in service of a concerted effort at

forum shopping and, therefore, was "for an improper purpose."

The superior court's sanctions decision was tenable. Because O'Brien

had never submitted factual allegations or legal argument in support of her

-13-
No. 74367-8-1/14

claims against Lawson, Koskinen, Purvis, and Ketza, the superior court could

reasonably infer that the claims against those individual defendants were not

made in a good faith effort to extend the law but, rather, for some other purpose.

In addition, because of O'Brien's voluntary dismissal of the four individual

defendants after she had added ABM Parking and ABMI to her second state

court action, the superior court could reasonably infer that O'Brien's actual

purpose for initially suing the individual defendants was forum shopping and was

thus improper."

Nonetheless, in her appellate briefing, O'Brien contends that her claims

against the four dismissed individual defendants were made for a proper purpose

and in a good faith attempt to extend the law because, although no case

authority exists in support of her claims, existing case law could be modified so

as to justify the claims. But O'Brien misses the point. As discussed, the superior

court's imposition of sanctions was premised on its finding that, by the time that it

issued its sanctions order, O'Brien had failed to provide factual allegations and

legal argument in support of her claims against the four dismissed individual

defendants. That O'Brien has on appeal brought forth allegations and argument

14 O'Brien asserts that the presence of Carder, a Washington resident, in the second

state court action demonstrates that she had included the four individual defendants for a proper

purpose, rather than for forum shopping. This is so, O'Brien contends, because Carder's

inclusion in the action, by itself, defeated federal diversity jurisdiction. This argument is

unconvincing. Carder's inclusion as a defendant had not prevented the federal court from

maintaining jurisdiction over the first lawsuit. Thus, the superior court judge could reasonably

conclude that O'Brien had included the four individual defendants in a further attempt to anchor

her claim in the state forum. There was no error.

- 14 -
No. 74367-8-1/15

is of no moment. The superior court did not abuse its discretion.15 There was no

error.

O'Brien also contends that the superior court erred by denying her motion

for reconsideration of its sanction order. We disagree. As discussed, the

premise for the superior court's sanction order was that—prior to the court's

sanction order—O'Brien had never actually requested a ruling that would have

extended the law. Instead, she dismissed the claims. From this, the court

concluded that she had named these defendants for the improper purpose of

forum shopping. The logic is inescapable: to litigate in a good faith attempt to

modify the law, a party must actually ask the court to modify the law. This never

happened. There was no abuse of discretion. Klever v. Harborview Med. Ctr. of

Univ. of Wash.,76 Wn. App. 542, 545, 887 P.2d 468 (1995) (citing Meridian 

Minerals Co. v. King County,61 Wn. App. 195, 203-04, 810 P.2d 31 (1991)).

15 O'Brien contends that the superior court erred by failing to consider the least severe

alternative in imposing its sanction against her and her attorneys, by failing to specify how it

calculated the sanction award, and by failing to explain the relationship between the sanction and

the conduct being sanctioned. O'Brien is wrong. The superior court determined that, in light of

O'Brien's improper allegations against the four individuals, sanctions tied to the cost of defending

those individuals against O'Brien's claims were appropriate. In addition, the superior court, citing

Biggs, 124 Wn.2d at 197, recognized that CR 11 is not "meant to act as a fee shifting

mechanism" and explicitly reduced the sanction award from the actual costs of defending these

four individuals, $38,237.50, to a lesser amount that the superior court deemed was more

appropriate, $6,500.00, nearly one-sixth of the estimated costs. This was well within the superior

court's discretion. Thus, the superior court did not err.

O'Brien also asserts that the superior court did not have the authority to impose CR 11

sanctions on the basis of "improper purpose" alone. Again, she is wrong. Indeed, the authority

on which she relies for this proposition plainly supports just the opposite—that improper purpose

is one of several grounds that can, standing alone, justify the imposition of sanctions. Biggs, 124

Wn.2d at 201.

-15-
No. 74367-8-1/16

III

O'Brien next contends that the superior court erred by denying her motion

for a continuance of the summary judgment hearing in order to conduct additional

discovery. A review of the record reveals no such error.

"Whether a motion for continuance should be granted or denied is a

matter of discretion with the trial court, reviewable on appeal for manifest abuse

of discretion." Trummel v. Mitchell, 156 Wn.2d 653, 670, 131 P.3d 305 (2006)

(citing Balandzich v. Demeroto, 10 Wn. App. 718, 720, 519 P.2d 994 (1974)). A

court abuses its discretion when its decision is based on clearly untenable or

manifestly unreasonable grounds. Trummel,156 Wn.2d at 671 (quoting

Balandzich, 10 Wn. App. at 721). In exercising its discretion, a trial court may

consider several factors, including the prior history of the litigation and any prior

continuances granted to the moving party. Trummel,156 Wn.2d 670-71 (citing

Balanzdich, 10 Wn. App. at 720).

Here, the superior court denied O'Brien's motion for continuance, stating:

[T]he case has been pending for over two years, there has been

active discovery and motions practice with certain things left

undone seemingly by choice (such as a deposition of Leonard

Carder). In those matters not diligently pursued, there is no

indication of specific evidence that is likely to be found and likely to

create material issues of fact.

The superior court's decision was tenable. Given that O'Brien's 2013

action and the present action involved predominantly the same actors and

allegations, the superior court's determination was reasonable. Moreover, in light

of the two continuances granted to O'Brien during the federal action, which

- 16 -
No. 74367-8-1/17

allowed her to pursue additional discovery, the superior court clearly acted within

its discretion. There was no error.16

IV

O'Brien next asserts that the superior court erred by granting summary

judgment on behalf of ABMI, ABM Parking, and Carder as to her employment

discrimination, retaliation, and breach of contract claims. We disagree.

"When reviewing an order of summary judgment, we engage in the same

inquiry as the trial court." Clarke v. Office of the Attorney General, 133 Wn. App.

767, 784, 138 P.3d 144 (2006) (citing Grundy v. Thurston County, 155 Wn.2d 1,

6, 117 P.3d 1089 (2005)). "All facts and reasonable inferences must be

considered in the light most favorable to the nonmoving party." Washington v. 

Boeing Co., 105 Wn. App. 1,7, 19 P.3d 1041 (2000) (citing Mountain Park 

Homeowners Ass'n, Inc. v. Tydinos, 125 Wn.2d 337, 341, 883 P.2d 1383

(1994)). "Summary judgment is appropriate only if the pleadings, affidavits,

depositions, and admissions on file demonstrate the absence of any genuine

issues of material fact and that the moving party is entitled to judgment as a

matter of law." Clarke, 133 Wn. App. at 784-85 (citing CR 56(c)).

A

As a preliminary matter, O'Brien contends that the superior court erred by

striking her declaration in support of her opposition to the motions for summary

16 O'Brien asserts that the superior court erred by denying her request for a continuance

because she was not permitted to amend her complaint to include a wrongful termination in

violation of public policy claim. O'Brien offers no elaboration or legal argument in her briefing to

support this assignment of error. Thus, we decline to consider it. Cowiche Canyon Conservancy

v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

- 17-
No. 74367-8-1/18

judgment. The court determined that the declaration was, in part, conclusory,

unsubstantiated, and lacking in foundation.

This issue was raised for the first time on appeal in O'Brien's reply brief.

Carder, ABM Parking, and ABMI were thus not afforded a fair opportunity to

respond. Accordingly, we do not consider O'Brien's claim. RAP 10.3(c); Kirby v. 

Emp't Sec. Dep't, 185 Wn. App. 706, 727, 342 P.3d 1151 (2014), review denied,

183 Wn.2d 1010 (2015); accord Cowiche Canyon Conservancy v. Bosley, 118

Wn.2d 801, 809, 828 P.2d 549 (1992).

O'Brien asserts that the superior court erred by granting summary

judgment on behalf of ABMI because, as evidenced by Smith's review of ABM

Parking's termination decision, ABMI was also her employer, thereby allowing

her to bring her employment discrimination claims against ABMI.

An appellant must provide "argument in support of the issues presented

for review, together with citations to legal authority and references to relevant

parts of the record." RAP 10.3(a)(6); Cowiche Canyon Conservancy, 118 Wn.2d

at 809. O'Brien fails to provide citation to legal authority establishing an

employment relationship between her and ABMI. Accordingly, we decline to

further consider this claim.

O'Brien next contends that the superior court erred by dismissing her

claims against ABM Parking as to her hostile work environment, retaliation, age

-18-
No. 74367-8-1/19

discrimination, failure to accommodate, and breach of contract claims. Each is

addressed in turn.

1

O'Brien contends that the superior court erred by dismissing her claim that

ABM Parking subjected her to a hostile work environment. This is so, she

asserts, because she was unnecessarily disciplined, required to report to work

while on vacation, assigned to inspect parking locations, and assigned to work

without reasonable accommodation at the Spokane Fair.

In order to withstand summary judgment on a hostile work environment

claim, a plaintiff must make a prima facie showing that "(1) the harassment was

unwelcome, (2) the harassment was because of [a protected classification], (3)

the harassment affected the terms or conditions of employment, and (4) the

harassment is imputed to the employer." Boeing Co., 105 Wn. App. at 12-13

(citing Fishery. Tacoma Sch. Dist. No. 10,53 Wn. App. 591, 595-96, 769 P.2d

318 (1989)). Whether allegedly discriminatory conduct is sufficiently severe and

pervasive so as to affect the terms and conditions of employment is a question of

fact. Adams v. Able Bldq. Supply, Inc., 114 Wn. App. 291, 296, 57 P.3d 280

(2002) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 126 L.

Ed. 2d 295 (1993)). However, a grant of summary judgment dismissing a hostile

work environment claim is appropriate when the plaintiff's submissions

demonstrate nothing more than "[c]asual, isolated or trivial manifestations of a

discriminatory environment" because such manifestations do not affect the

conditions of employment "to a sufficiently significant degree to violate the law."

-19-
No. 74367-8-1/20

Boeing Co., 105 Wn. App. at 10 (citing Faragher v. City of Boca Raton,524 U.S.

775, 788, 1188. Ct. 2275, 141 L. Ed. 2d 662 (1998); Glasgow v. Ga.-Pac. Corp.,

103 Wn.2d 401, 406, 693 P.2d 708 (1985); Korum Ford,80 Wn. App. at 886).

O'Brien fails to establish that the allegedly harassing conduct was

sufficiently severe and pervasive so as to alter the terms of her employment. As

the superior court observed, her assignments to inspect ABM Parking's client

locations and assist with parking at the Spokane Fair were reasonably within the

scope of her duties as operations manager. Moreover, the grounds on which

O'Brien was disciplined were reasonable and her other allegations constitute

isolated incidents that do not rise to the requisite level of severity and

pervasiveness to support a claim.17 There was no error.

2

O'Brien next asserts that the superior court erred by granting ABM

Parking's motion for summary judgment as to her retaliation claim. This is so,

she asserts, because she engaged in opposition activity by assisting with Dillon's

sexually inappropriate conduct complaint and with Koskinen's termination

decision regarding Jason Reidt, another ABM employee.

17 O'Brien asserts that she was subjected to a hostile work environment when a manager

recorded a private telephone conversation and played the conversation to her coworkers.

O'Brien's citation to the record in her briefing does not, in actuality, reference this conduct. Thus,

we do not further consider this assertion.

O'Brien next relies on her allegation that she was granted vacation time over a weekend

and subsequently asked to work a shift during that time. However, without more, this allegation is

clearly insufficient to establish severe and pervasive harassment that altered the terms of her

employment. O'Brien also contends that the superior court usurped the role of the jury by

concluding that "the parking lot inspections do not seem to be outside the scope of anticipatable

duties." She fails to submit legal argument in support of this claim and thus we do not further

consider it.

- 20 -
No. 74367-8-1/21

"To show retaliation based on protected activity, a plaintiff must provide

evidence that the individuals [s]he alleges retaliated against [her] knew of [her]

protected activity." Mann v. King County, 194 Wn. App. 795, 818, 378 P.3d 203

(citing Currier v. Northland Servs., Inc., 182 Wn. App. 733, 746-47, 332 P.3d

1006 (2014), review denied, 182 Wn2d 1006 (2015)), review denied, 186 Wn.2d

1028 (2016).

There is an absence of evidence that the individuals who terminated

O'Brien's employment were aware that she had engaged in the alleged protected

activity. O'Brien established that Koskinen was aware that she had engaged in

the alleged protected activity. But Koskinen left his employment with ABM

Parking in 2010 and Howery and Kwan made the decision to terminate O'Brien's

employment in 2012. Moreover, Howery and Kwan denied knowing that O'Brien

engaged in the activities that she described. O'Brien failed to provide evidence

rebutting their denials. Thus, O'Brien's retaliation claim fails.18

3

O'Brien alleges that the superior court erred by granting summary

judgment on her age discrimination claim because she and Eichner, the

individuals whose positions were terminated, were both over 40 years old and,

therefore, ABM Parking's reason for terminating her employment was pretextual.

18 O'Brien argues that she engaged in protected opposition activity in 2010 when she

forwarded an e-mail by Koskinen advising an employee not to ask another employee about

confidential and personal medical issues. However, O'Brien again fails to establish that Howery

and Kwan were aware that she had engaged in this allegedly protected conduct. Mann, 194 Wn.

App. at 818.

- 21 -
No. 74367-8-1/22

To survive summary judgment on an age discrimination claim when an

employer presents "admissible evidence of a legitimate, nondiscriminatory

explanation for the adverse employment action sufficient to raise[ ] a genuine

issue of fact as to whether [the defendant] discriminated against the plaintiff,'" the

employee must "show that [defendant's] stated reason for [the adverse action]

was in fact pretext." Dumont v. City of Seattle, 148 Wn. App. 850, 862, 200 P.3d

764 (2009) (internal quotation marks omitted) (alterations in original) (quoting Hill

v. BCTI Income Fund-I, 144 Wn.2d 172, 181-82, 23 P.3d 440 (2001), overruled 

on other grounds by McClartv. v. Totem Elec., 157 Wn.2d 214, 137 P.3d 844

(2006)). However, an employee cannot create a question of fact on the pretext

issue in the absence of some evidence that the employer's reasons for

termination are unworthy of belief. Kuvper v. Dep't of Wildlife, 79 Wn. App. 732,

738, 904 P.2d 793 (1995) (citing Sellsted v. Wash. Mut. Say. Bank,69 Wn. App.

852, 859, 851 P.2d 716 (1993)).

O'Brien fails to show that ABM Parking's stated reason for the adverse

action—that O'Brien's position was terminated as part of a workforce reduction in

response to losses in revenue and automation at their parking locations—was, in

fact, pretext. O'Brien presents no evidence to rebut ABM Parking's stated

reasons for terminating the positions she and Eichner held in the

Seattle/Bellevue branch. She offers no evidence rebutting the evidence

presented by ABM Parking regarding the timing of its decision. Indeed, O'Brien

offers no evidence to support her claim other than her own speculation that age

was the reason for her termination. Such statements are "not enough to survive

- 22 -
No. 74367-8-1/23

summary judgment." Domingo v. Boeing Employees' Credit Union, 124 Wn.

App. 71, 85, 98 P.3d 1222 (2004). Thus, O'Brien's claim was properly

dismissed.

4

O'Brien contends that she was discriminated against by ABM Parking

because it failed to reasonably accommodate her claimed medical condition

when she was assigned to work three days at the Spokane Fair in 2012.

To establish a prima facie case for failure to accommodate a disability, the

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

in question; (3) the employee gave the employer notice of the

abnormality and its accompanying substantial limitations; and (4)

upon notice, the employer failed to affirmatively adopt measures

that were available to the employer and medically necessary to

accommodate the abnormality."

Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 145-46, 94 P.3d 930 (2004) (quoting

Hill, 144 Wn.2d at 192-93; citing Davis v. Microsoft Corp., 149 Wn.2d 521, 532,

70 P.3d 126 (2003)). "A reasonable accommodation envisions an exchange

between employer and employee, where each party seeks and shares

information to achieve the best match between the employee's capabilities and

available positions." Frisino v. Seattle Sch. Dist. No. 1, 160 Wn. App. 765, 779,

249 P.3d 1044 (2011).

O'Brien fails to show that ABM Parking failed to reasonably accommodate

her alleged medical condition. As discussed, in prior years, ABM Parking

employees had worked shifts at the Spokane Fair lasting from 8:00 a.m. to 11:00

- 23 -
No. 74367-8-1/24

p.m., a total of 15 hours. In response to O'Brien's e-mail that she was concerned

about working such long hours, Ketza responded that the plan was to increase

staffing at the Spokane Fair in order to reduce shift lengths. O'Brien replied, "all

of my needs have been met!" At the fair, O'Brien worked for 8 and 12 hour shifts.

She did not request to stop working the shifts nor did she request further

accommodation while at the fair.

Thus, to the extent that O'Brien articulated her concern about her medical

condition, ABM Parking reasonably accommodated her. The shifts assigned at

the fair were shorter than they had been in the past and O'Brien affirmatively

communicated that her needs had been met. She conveyed no other message

to her supervisors. Accordingly, O'Brien has failed to show that ABM Parking

failed to meet a reasonable accommodation duty.

5

O'Brien next contends that the superior court erred by dismissing her

breach of contract claim against ABM Parking based on the provisions of the

ABM Code of Business Conduct (Code). O'Brien's claim fails.

When an employer's handbook states "in a conspicuous manner that

nothing contained therein is intended to be part of the employment relationship,"

an employee cannot establish that the employer made an enforceable promise

through statements in the handbook. Thompson v. St. Regis Paper Co., 102

Wn.2d 219, 230, 685 P.2d 1081 (1984).

Here, the Code did not create an employment contract between O'Brien

and ABM Parking. In fact, the Code contains a conspicuous certification

-24 -
No. 74367-8-1/25

provision whereby employees "agree that neither this Code nor any part thereof

shall constitute a contract for employment between me and the Company."

.Furthermore, in her briefing, O'Brien conceded that, every year, she received and

reviewed a copy of the Code and acknowledged that she had received it. There

was no error.19

Accordingly, the superior court did not err by dismissing O'Brien's breach

of contract claim against ABM Parking.

D

O'Brien further asserts that the superior court erred by granting summary

judgment on behalf of Carder. This is so, she asserts, because genuine issues

of material fact remain regarding her hostile work environment and retaliation

claims against him. We disagree.

To hold a manager or supervisor individually liable under the MAD, the

plaintiff must show that the manager or supervisor "affirmatively engage[d] in

discriminatory conduct." Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349,

360 n.3, 20 P.3d 921 (2001) (citing Tyson v. CIGNA Corp.,918 F. Supp. 836,

841-42 (D.N.J. 1996), aff'd, 149 F.3d 1165 (3d Cir. 1998)).

O'Brien avers that Carder retaliated against her after she assisted with

Dillon's sexually inappropriate conduct complaint. However, O'Brien fails to

rebut, without resorting to unsubstantiated and speculative allegations, Carder's

declaration establishing that he was not personally aware of any complaint by

19 O'Brien references in her briefing to the ABM Employee Handbook, but she provides

no citation to the record for this handbook.

-25-
No. 74367-8-1/26

Melody Dillon of sexually inappropriate conduct during her employment with ABM

Parking. 20 Thus, O'Brien's claim fails.

O'Brien next suggests that Carder retaliated against her because, on the

day that she was fired, she had notified her supervisor that she had received a

telephone call from a newspaper reporter inquiring into fraud at an ABM Parking

location, and that her supervisor had then forwarded her notification to Carder.

Thus, O'Brien contends, she was terminated because she had spoken with a

media member about accounting irregularities. But, as discussed herein, the

decision to terminate O'Brien's position was made by Howery and Kwan several

months earlier and, significantly, O'Brien presents no evidence that Carder was

involved in that decision.21 Again, O'Brien's claim fails.

O'Brien also contends that Carder had subjected to her a hostile work

environment by assigning her to inspect ABM Parking's client locations and

investigate the accounts receivable at Pacific Place Garage. As discussed

herein, these tasks were within the scope of her employment as operations

manager at ABM Parking and cannot be said to have altered the terms and

20 The evidence presented by O'Brien in support of her allegation that Carder was

affirmatively engaged in conduct in violation of the WLAD is based primarily on portions of her

declaration and deposition testimony that are unsubstantiated, conclusory, and lacking in

foundation. Specifically, O'Brien alleged that Carder retaliated against her because of her

involvement in Dillon's complaint. As circumstantial evidence to support her allegation, O'Brien

points out that Dillon testified in her deposition that she went to a "fancy guy's office" for a

meeting and felt intimidated there. Significantly, however, Dillon further testified that she did not

know whether Carder was the individual whose office she visited, did not "remember who the guy

was," or even what the meeting was about. Thus, O'Brien's claim that Carder was involved in

Dillon's complaint is unsubstantiated.

21 O'Brien speculates that Carder was the "true decision-maker," that her position was

terminated to keep her "from disclosing what she knew about the fraud or mismanagement" at the

ABM Parking location, and that the decision to eliminate O'Brien's position "had to be approved

by Carder" because he had allegedly created her position in 2007 and retained control over the

operating budget for ABM Parking. The superior court properly gave these speculative

contentions no evidentiary significance.

- 26-
No. 74367-8-1/27

conditions of her employment. Her claim fails.22 Thus, the superior court did not

err by dismissing O'Brien's claims against Carder.23

Affirmed.

We concur:

22 O'Brien fails to present facts or legal analysis connecting Carder to her age and

disability discrimination claims as well as her breach of contract claim. Accordingly, we decline to

further consider these claims as they pertain to Carder.

23 O'Brien also contends that the trial court erred by granting summary judgment as to her

negligent infliction of emotional distress and intentional infliction of emotional distress claims

against Carder, ABM Parking, and ABMI. However, she fails to present any factual allegations or

legal argument. Accordingly, we decline to further consider these claims. Cowiche Canyon

Conservancy, 118 Wn.2d at 809.

- 27 -