IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

ROBERT C. SMITH, an individual,

 Appellant,

 v.

CITY OF SEATTLE,

 Respondent.

No. 84351-6-I

UNPUBLISHED OPINION

BOWMAN, J. — Over the course of Robert Smith’s employment with the 

Seattle Department of Finance and Administrative Services (FAS), FAS

investigated him several times for violating its “Workplace Expectations” (WPEs). 

FAS issued Smith a written reprimand, a 5-day suspension, and a 15-day 

suspension. And it declined to give Smith a discretionary pay raise. Smith sued 

the city of Seattle (City), alleging disparate treatment, retaliation, and negligent 

supervision by FAS. The trial court dismissed Smith’s claims on summary 

judgment. We reverse the court’s order dismissing Smith’s disparate treatment 

claim related to FAS’ denial of his pay raise and remand that claim for further 

proceedings. We otherwise affirm.

FACTS

In June 2016, FAS hired Smith, a Black man, as a janitorial services 

manager. FAS hired Smith to supervise around 20 people and provide custodial 
No. 84351-6-I/2

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services to Seattle City Hall (City Hall) and the Department of Corrections 

Community Justice Center Seattle-King County (CJC). 

Written Reprimand

In May 2017, several members of the janitorial staff each submitted a 

“Letter of No Confidence” to FAS because of Smith’s “lack of leadership, 

mismanagement and poor policy decisions.” The staff members alleged that 

Smith (1) “treated employees less favorably after they complained to or about 

him, or attended a union [meeting],” (2) “argued with his janitorial lead in the 

presence of other janitorial staff and behaved unprofessionally,” and (3) “was 

unprofessional towards or in the presence of other staff.” Long-time employee 

Craig McKinney, FAS Facilities Maintenance Day Crew Lead Janitor, also 

alleged that Smith “treated him differently than other janitorial staff because 

Smith did not like him.” Among other things, McKinney claimed that Smith 

“flipped him off” with his middle finger during an argument. 

FAS Senior Human Resources (HR) Business Partner Megan Baek 

investigated these and other complaints about Smith. After interviewing 

employees, including Smith, and reviewing City Hall video footage, Baek found 

that Smith violated FAS’ WPEs by 

(1) denying janitors overtime after they complained about his 

process for assigning overtime; (2) arguing with McKinney in the 

presence of other janitorial staff; (3) inappropriately addressing 

McKinney’s safety concern during [an] April staff meeting; (4) giving 

McKinney the middle finger; (5) arguing with staff; (6) undermining 
No. 84351-6-I/3

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the lead janitor’s authority; and (7) avoiding communication with 

McKinney. 

Still, Baek found several complaints were unsubstantiated or involved conduct 

that did not violate the WPEs. 

On November 9, 2017, Smith’s supervisor, FAS Facilities Operations 

Division Director Mike Ashbrook, recommended that FAS suspend Smith for five 

days. Ashbrook noted that Smith’s “unprofessional behavior has created a 

negative work environment for the janitorial staff.” In December 2017, Smith 

attended a Loudermill1 hearing with FAS Director Fred Podesta to discuss the 

reasons for his actions and dispute the suspension. 

On January 25, 2018, Podesta issued his final determination and reduced 

Ashbrook’s suspension recommendation to a written reprimand. But Podesta 

wanted it to be “clear” that he agreed with Baek’s findings and with Ashbrook “on 

the severity” of Smith’s actions. Podesta explained to Smith that the reason for 

his decision was

not due to your underlying business reasons or justifications. 

Instead, the discipline is due to your disrespectful communication 

style, the manner in which you relay decisions to your employees, 

your inability to resolve conflict appropriately, and you adding to

a negative work environment.

Ashbrook then started meeting with Smith weekly to discuss Smith’s 

management style. In early May 2018, they met to “finalize the results from last 

year’s investigation and help [Smith] reset the job expectations as the manager 

 

1 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 547-48, 105 S. Ct. 

1487, 84 L. Ed. 2d 494 (1985) (holding public employees have a property right in 

continued employment and the state cannot deprive them of that right without due 

process).
No. 84351-6-I/4

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of the janitorial group.” Ashbrook offered several resources to Smith and 

recommended that he seek mentoring from FAS Facilities Maintenance Manager 

John Sheldon, a long-term employee. Ashbrook also offered Smith a job coach 

and management training courses by the City.

Five-Day Suspension

On May 29, 2018, FAS Senior HR Business Partner Becky Stover 

investigated reports by janitors Kevin Nelson and Preston Thomas about Smith 

and McKinney’s continuing misconduct. Nelson alleged that Smith and 

McKinney discriminated and retaliated against him. Thomas asserted that Smith 

did not address his complaints that McKinney harassed and bullied him. Stover 

found that Smith violated the WPEs by yelling at Nelson, insulting him, and 

confronting him about his attire and by failing to manage Thomas’ complaints 

about McKinney. 

Then, in August 2018, Baek investigated a report by a janitorial crew chief 

that Smith agreed to pay another janitor “one hour overtime each day even if he 

worked less than one hour.” Baek confirmed the allegation was true and found 

that Smith violated the WPEs because he did not have the authority to pay the 

janitor more overtime than he actually worked. 

On November 15, 2018, Ashbrook recommended a 10-day suspension

based on Smith’s incidents with Nelson and Thomas. And on January 8, 2019,

after a Loudermill hearing, FAS Department Director Calvin Goings issued Smith 

a 5-day suspension for 

1) yelling “get off the phone” and “your break is over” at [Nelson] 

who was on the phone with another City employee during his 
No. 84351-6-I/5

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break; 2) making insulting comments to [Nelson], including that you 

hoped he didn’t turn into a “monster” and that he should dress 

professionally and “not like a homeless person going through the 

trash”; 3) confronting [Nelson], whom you knew had made a 

harassment claim against you, about his work attire in a public area 

of City Hall and escalating the interaction by questioning the 

employee in a sarcastic and accusatory manner and immediately 

ordering him to go home; [and] 4) failing to consistently address 

[Thomas’] repeated complaints about [McKinney’s] bullying 

communication style and behavior.

Goings also based the suspension on Smith “offering to pay overtime to an 

employee for more than the actual hours worked which resulted in the employee 

being paid for overtime hours he did not work and him having to repay the 

overpayment.”

Smith’s September 2018 Complaint to FAS

In mid-September 2018, Smith became concerned that two of his 

employees were engaged in a time-theft scheme. According to him, one 

employee would clock-in at the worksite and allow the second employee, who 

was not yet at work, to clock-in by phone so that he could receive overtime pay. 

Smith reported his concerns to Baek and Ashbrook and asked to use video 

cameras to collect evidence of the employees’ misconduct. Baek and Ashbrook

escalated the matter to FAS HR Director Andrew Lu.

On September 20, 2018, Lu e-mailed Smith that there would be no video 

investigation and that Smith should talk to the employees directly. Soon after, Lu 

explained to Smith that he did not want to investigate the employees because 

they were “ ‘entirely [B]lack’ ” and “ ‘the optics of it wouldn’t look good.’ ” In early 

2019, Smith complained about Lu’s conduct to the Seattle City Attorney’s Office. 

On June 12, 2019, an investigator with the City’s Anti-Harassment Inter-
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departmental Team issued a report, concluding that while “Lu was within his 

managerial rights when he denied the use of the video data,” his response in the

matter “was inappropriate, inconsistent with the usual practice and based at least 

in part on the ethnicity of the employees involved.”

Fifteen-Day Suspension

On May 29, 2019, McKinney alleged that as he was leaving the building to 

begin serving a disciplinary suspension, Smith yelled at him, “ ‘Enjoy your [10]

days off unpaid.’ ” In an August 2019 investigative report, Baek concluded that 

more likely than not, Smith made the comment in violation of the WPEs. Baek 

encouraged Smith and McKinney to engage in “restorative conversation.” 

Then, in October 2019, Smith and McKinney independently e-mailed 

Sheldon2 about an argument they had at City Hall. Each maintained that the 

other told him to “ ‘fuck off’ ” after McKinney confronted Smith about operating a

floor scrubbing machine. Smith complained that “ ‘this behavior has continued 

for [three years] with no changes despite attempts by Administrative staff and 

[HR] to correct them. I am officially once again filing Harassment charges 

against . . . McKinney.” Sheldon referred his complaint to FAS HR. 

On January 28, 2020, the HR investigator found that “Smith and McKinney 

acknowledged they made provocative remarks to one another” and that a video 

of the incident “revealed they both displayed conduct that could reasonably be 

 

2 By May 2019, FAS had assigned Sheldon as supervisor of the janitorial 

services unit. Sheldon supervised both Smith and McKinney, and Smith was “expected 

to take [issues with McKinney] to Sheldon to be dealt with.” 
No. 84351-6-I/7

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viewed as aggressive.” The investigator also concluded that while McKinney 

“instigated the confrontation,” Smith’s response violated FAS’ WPEs. 

Meanwhile, McKinney complained to FAS HR that on January 22 and 23,

2020, Smith inappropriately assigned another employee one of McKinney’s lead 

janitorial duties of training a new janitor. On March 31, 2020, FAS Employee and 

Labor Relations Manager Ray Sugarman, who was also the FAS Interim HR

Manager at the time, concluded that Smith’s conduct violated the WPEs. Then,

in April, Sugarman addressed another report that Smith was rude to a City Hall 

staff member and inappropriately provided her with a potentially harmful cleaning 

chemical “instead of addressing her concerns.”

3

 Sugarman concluded that 

Smith’s conduct violated FAS’ WPEs. 

Based on these WPE violations, Ashbrook recommended that Smith 

receive a 15-day suspension. And on May 27, 2020, after a Loudermill hearing, 

Goings issued the recommended 15-day suspension, agreeing with the findings 

of the FAS HR investigator and Sugarman. Goings noted, “You have engaged in 

a pattern of similar behavior in the past and your failure to improve is 

concerning.” 

On June 12, 2020, Smith filed a grievance with the City, alleging that FAS

unfairly suspended him. Smith argued that the evidence presented did not 

support his suspension. On September 11, 2020, Goings issued a letter 

upholding the 15-day suspension. 

 

3 Sugarman also found that the chemical “was not being stored properly and . . . 

was flammable.” 
No. 84351-6-I/8

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Smith’s 2021 Lawsuit

On September 14, 2020, Smith filed a disciplinary appeal with the City’s

Civil Service Commission (CSC). Then, on December 4, 2020, he filed a claim 

for damages with the City for “[e]conomic losses due to suspension” and 

“[e]motional distress damages.”4 And on March 23, 2021, Smith sued the City in 

King County Superior Court, alleging retaliation for his September 2018 

complaint against Lu, retaliation for exercising his First Amendment5right to free 

speech, and negligent supervision of Ashbrook, Lu, McKinney, and Sheldon. 

FAS Denies Smith a Pay Raise

On October 27, 2021, Smith’s supervisor, FAS Logistics and Emergency 

Management Division Director Philip Saunders, recommended Smith and 

another manager from FAS Mail and Distribution Services recieve a pay raise. 

FAS considers raises at the end of each calendar year under a “discretionary pay 

program” that bases the raise on whether the manager’s job duties expanded,

they had progressed in their job’s learning curve, and their salary was internally 

aligned. 

FAS denied Smith’s raise. The decision-making committee determined

that “Smith’s duties had not significantly expanded, that he had recent, serious 

discipline, and that as a result he had room to grow on his managerial learning 

curve.” FAS gave the other manager a pay raise. 

 

4 Smith withdrew his appeal with the CSC in February 2021.

5 U.S. CONST. amend I.
No. 84351-6-I/9

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Amended Complaint and Summary Judgment Dismissal

On March 11, 2022, Smith amended his complaint to add a claim for 

disparate treatment related to his suspensions and FAS’ refusal to give him a 

raise. He also clarified his First Amendment claim, alleging FAS retaliated 

against him for speaking out against Lu. 

On June 17, 2022, FAS moved for summary judgment, arguing that Smith 

failed to show it violated the Washington Law Against Discrimination (WLAD), 

chapter 49.60 RCW. On July 15, the court granted FAS’ motion for summary 

judgment and dismissed Smith’s claims with prejudice. 

Smith appeals. 

ANALYSIS

Smith argues the trial court erred by dismissing his WLAD lawsuit on 

summary judgment. 

We review a trial court’s grant of summary judgment de novo. Kim v. 

Lakeside Adult Fam. Home, 185 Wn.2d 532, 547, 374 P.3d 121 (2016). 

Summary judgment is appropriate when, viewing all facts and reasonable 

inferences in a light most favorable to the nonmoving party, there is no genuine 

issue as to any material fact and the moving party is entitled to judgment as a 

matter of law. Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d 157, 164, 273 

P.3d 965 (2012); Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 

P.3d 886 (2008); CR 56(c). A genuine issue of material fact exists where 

reasonable minds could differ on the facts controlling the outcome of the 

litigation. Ranger, 164 Wn.2d at 552. 
No. 84351-6-I/10

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The purpose of the WLAD is to deter and eradicate discrimination in 

Washington. Fraternal Ord. of Eagles, Tenino Aerie No. 564 v. Grand Aerie of 

Fraternal Ord. of Eagles, 148 Wn.2d 224, 246, 59 P.3d 655 (2002). We construe 

the WLAD liberally to accomplishment that purpose. W.H. v. Olympia Sch. Dist., 

195 Wn.2d 779, 784, 465 P.3d 322 (2020); RCW 49.60.020. Summary judgment 

for an employer is seldom appropriate in WLAD cases because of the difficulty of 

proving a discriminatory motivation. Scrivener v. Clark Coll., 181 Wn.2d 439, 

445, 334 P.3d 541 (2014). But summary judgment for the employer is proper if 

the 

“record conclusively revealed some other, nondiscriminatory reason 

for the employer’s decision, or if the [employee] 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 had occurred.”

Becker v. Wash. State Univ., 165 Wn. App. 235, 252-53, 266 P.3d 893 (2011)6

(quoting Milligan v. Thompson, 110 Wn. App. 628, 637, 42 P.3d 418 (2002)).

When evaluating the merits of WLAD claims, we employ the McDonnell 

Douglas7 burden-shifting framework. Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas 

County, 189 Wn.2d 516, 526, 404 P.3d 464 (2017). This framework involves 

three steps. First, the employee must establish a prima facie case of 

discrimination. Marquis v. City of Spokane, 130 Wn.2d 97, 113, 922 P.2d 43 

(1996). An employee can do this by showing they are a member of a protected 

class and the employer acted adversely toward them. See Id. at 113-14. 

 

6

Internal quotation marks omitted.

7 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. 

Ed. 2d 668 (1973).
No. 84351-6-I/11

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Next, the employer may rebut the prima facie case by presenting evidence 

of a legitimate, nondiscriminatory reason for the adverse action. Marquis, 130 

Wn.2d at 114. The employer carries a burden of production and “ ‘need not 

persuade the court that it was actually motivated by the proffered reasons.’ ” 

Mikkelsen, 189 Wn.2d at 533 (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 

450 U.S. 248, 254, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)). “The employer 

need only introduce ‘evidence which, taken as true, would permit the conclusion 

that there was a nondiscriminatory reason for the adverse action.’ ” Id. (quoting 

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S. Ct. 2742, 125 L. Ed. 2d 

407 (1993)). 

Finally, even if the employer shows a nondiscriminatory reason for the 

adverse action, the employee may survive summary judgment by showing that 

the proffered nondiscriminatory reason amounts to pretext. Scrivener, 181 

Wn.2d at 441-42. “The employee shows pretext if the proffered justifications 

have no basis in fact, are unreasonable grounds upon which to base the 

[adverse action], or were not motivating factors in employment decisions for other 

similarly-situated employees.” Griffith v. Schnitzer Steel Indus., Inc., 128 Wn. 

App. 438, 447, 115 P.3d 1065 (2005). 

Smith argues the trial court erred by dismissing his claims for disparate 

treatment, retaliation, and negligent supervision. We address each claim in turn. 
No. 84351-6-I/12

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1. Disparate Treatment 

Smith argues the trial court erred by dismissing his disparate treatment 

claims because “he produced circumstantial evidence of disparate treatment 

based on race.”

To establish a prima facie case of racial discrimination based on disparate 

treatment, a plaintiff must show that they (1) belong to a protected class, (2) was 

treated less favorably in the terms or conditions of their employment (3) than a 

similarly situated, nonprotected employee, and (4) the nonprotected “comparator”

employee does substantially the same work. Washington v. Boeing Co., 105 

Wn. App. 1, 13, 19 P.3d 1041 (2000) (quoting Johnson v. Dep’t of Soc. & Health 

Servs., 80 Wn. App. 212, 227, 907 P.2d 1223 (1996)), abrogated on other 

grounds by Washington v. Horning Brothers, LLC, 339 F. Supp. 3d 1106 (E.D. 

Wash. 2018). 

A. Disparate Discipline

Smith asserts he was disciplined differently than other employees based 

on his race. He uses Sheldon, a white manager, as a comparator. Smith argues 

that Sheldon also faced complaints but FAS punished him less harshly than 

Smith. The record does not support Smith’s argument.

In January 2019, FAS investigated Sheldon after a female employee 

alleged he treated her differently than male employees by scrutinizing her 

overtime requests, assigning her to a different worksite, making inappropriate 

comments, and seeking out complaints about her from other crew members. 

FAS HR Manager Andrea Sheele investigated the allegations and concluded that 
No. 84351-6-I/13

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Sheldon violated the WPEs by failing to directly address performance concerns 

with the employee and coming across as “angry and demeaning” toward her. 

She determined that the other allegations were unsubstantiated. Scheele

recommended that Sheldon “receive coaching and training regarding his 

communication style” and have a “restorative discussion” with the employee.

8

 

Unlike Sheldon, FAS disciplined Smith after receiving several complaints 

about his conduct for years. FAS first issued Smith a written reprimand in 2017 

after finding he violated several WPEs, including arguing with McKinney in front 

other janitorial staff, singling him out during a safety meeting, giving him the 

“middle finger,” making statements to other staff to undermine his authority, and 

avoiding communication with him. FAS then suspended Smith for five days in 

2018 after he continued to violate the WPEs, including harassing and insulting 

Nelson, failing to address complaints about McKinney, and paying a janitor 

overtime for hours he did not work. 

And finally, FAS issued Smith’s 15-day suspension in 2019 because he 

continued to violate the WPEs. Smith inappropriately responded to a verbal 

altercation with McKinney, assigned McKinney’s work to another janitor, and was 

 

8 Smith offers several other incidents of Sheldon’s conduct that are either 

unsupported by the record or not comparable. For example, he argues FAS treated

Sheldon favorably by choosing not to follow up on an allegation that Sheldon made an 

inappropriate comment about an employee’s age. But the record shows that FAS

decided not to investigate the incident after reaching out to the employee with no 

response. Smith also points to a complaint he made to Baek, alleging Sheldon was 

“disrespectful and angry to him in e[-]mail communication” in March 2020. But these emails occurred after Sheldon became Smith’s supervisor, so Sheldon and Smith were 

not similarly situated employees at the time. And Smith argues that two unions 

complained that Sheldon violated a collective bargaining agreement. But the record 

shows that while the unions directed their grievances to Sheldon, he was not the subject 

of the unions’ complaints. We do not consider these incidents in our analysis. 
No. 84351-6-I/14

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rude to a City Hall staff member and provided her with a potentially harmful 

cleaning chemical. In issuing the 15-day suspension, Goings noted Smith’s 

frequent behavioral issues, stating: 

You have engaged in a pattern of similar behavior in the past and 

your failure to improve is concerning. On January 14, 2019, you 

received a [5]-day suspension for disrespectful communications 

with subordinates and failure to follow labor contract provisions 

regarding pay. On January 25, 2018, you received a Written 

Reprimand specifically for your conduct with Mr. McKinney 

including arguing with him in front of staff and in public places,

making disrespectful comments to him, and giving him the middle 

finger. You also violated contract provisions regarding pay and 

assigning of overtime.

Smith’s misconduct is not similar to Sheldon’s and Smith faced 

increasingly harsher discipline because he continued to violate the WPEs over 

the years. As a result, Smith fails to show a prima facie case of racial 

discrimination by disparate disciplinary treatment under the WLAD. 

B. Disparate Denial of Pay Raise

Smith also argues that he showed sufficient evidence to survive summary 

judgment that FAS denied him a pay raise based on his race. We agree. 

The parties do not dispute that Smith is a member of a protected class. 

And the record shows that FAS Mail and Distribution Services Manager Daniel

Brown was a similarly situated white manager, was doing substantially the same 

work as Smith, and he received a year-end pay raise while Smith did not. 

In response, FAS offers a legitimate, nondiscriminatory reason for the 

adverse action. FAS showed that the City uses pre-established criteria in 

determining which employees will receive a year-end raise. Those criteria 

include “1) whether a manager’s job duties expanded or the manager was 
No. 84351-6-I/15

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assigned a new function; 2) whether the manager had progressed along their 

job’s learning curve; and 3) whether the manager’s salary was properly internally 

aligned.”

Brown achieved those criteria. In 2020 and 2021, his job duties expanded 

to include overseeing “WebEOC,” the City’s online portal for ordering items

related to the COVID-19 pandemic. Brown coordinated with FAS’ warehouse to 

fill and deliver those orders. And he “was further along on his managerial 

learning curve, due in part to his ability to effectively lead his staff as well as his 

lack of discipline or complaints from his subordinates.” But FAS concluded 

Smith’s “duties had not significantly expanded,” he had “recent, serious 

discipline,” and, as a result, “he had room to grow on his managerial learning 

curve.” 

Smith asserts FAS’ reasons for denying his raise are pretextual because 

Saunders recommended he receive a raise. Indeed, Saunders recommended 

both Smith and Brown for pay raises. In doing so, Saunders noted that FAS 

expanded Smith’s job duties by adding “Enhanced Covid Cleanings”; snow 

removal at the Seattle Municipal Tower, CJC, and SeaPark Garage; and an 

“Egress Plan” that required new training. 

Smith offers sufficient evidence to create an issue of fact as to whether 

FAS proffered legitimate reasons for denying his pay raise. As a result, we 

reverse the court’s order dismissing Smith’s disparate treatment claim related to

FAS’ denial of his pay raise and remand for further proceedings on that claim. 
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2. Retaliation 

Smith claims that FAS disciplined him and denied his pay raise in 

retaliation for reporting Lu to the City. He argues that the trial court erred by 

dismissing those claims at summary judgment. We disagree. 

The WLAD shields employees engaged in statutorily protected activity 

from retaliation by their employer. RCW 49.60.210; Lodis v. Corbis Holdings, 

Inc., 172 Wn. App. 835, 847, 292 P.3d 779 (2013). Specifically, “[i]t is an unfair 

practice for any employer . . . to discharge, expel, or otherwise discriminate 

against any person because he or she has opposed any practices forbidden by 

[the WLAD].” RCW 49.60.210(1). 

To establish a prima facie case of retaliation, an employee must first show 

they took a statutorily protected action. Cornwell v. Microsoft Corp., 192 Wn.2d 

403, 411, 430 P.3d 229 (2018). Reporting a potential violation of the WLAD is a 

statutorily protected activity. Davis v. W. One Auto. Grp., 140 Wn. App. 449, 

460, 166 P.3d 807 (2007). An employee need not show that their employer’s

behavior actually violated the WLAD. Estevez v. Faculty Club of Univ. of Wash., 

129 Wn. App. 774, 798, 120 P.3d 579 (2005). Instead, an employee need prove 

only that they opposed conduct that was “at least arguably a violation of the law.” 

Kahn v. Salerno, 90 Wn. App. 110, 130, 951 P.2d 321 (1998). 

Next, the employee must show they suffered an adverse employment 

action. Cornwell, 192 Wn.2d at 411. Finally, the employee must show there is a 

causal link between the protected activity and the adverse employment action. 

Id. To prove causation, an employee must show that retaliation was a 
No. 84351-6-I/17

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substantial motivating factor in the adverse employment action. Id. at 412. 

Retaliation need not be the main reason for the employment action. Currier v. 

Northland Servs., Inc., 182 Wn. App. 733, 746, 332 P.3d 1006 (2014). 

“ ‘Because employers rarely will reveal they are motivated by retaliation, 

[employees] ordinarily must resort to circumstantial evidence to demonstrate 

retaliatory purpose.’ ” Id. at 746-479(quoting Estevez, 129 Wn. App. at 799). 

We may infer causation by looking at the “ ‘proximity in time between the 

protected action and the allegedly retaliatory employment decision.’ ” Cornwell, 

192 Wn.2d at 415-1610 (quoting Raad v. Fairbanks N. Star Borough Sch. Dist., 

323 F.3d 1185, 1197 (9th Cir. 2003)). “If the employer knows of the protected 

activity and the [adverse employment action] follows ‘shortly thereafter, it is a 

reasonable inference that these actions were in retaliation’ for the activity.” 

Mackey v. Home Depot USA, Inc., 12 Wn. App. 2d 557, 577, 459 P.3d 371 

(2020) (quoting Cornwell, 192 Wn.2d at 415-16). We determine case-by-case

whether proximity in time gives rise to an inference of retaliation. See, e.g., Id.

(termination 12 days after complaint sufficient to show prima facie case of 

retaliation); Cornwell, 192 Wn.2d at 416 n.10 (termination “a few months” after 

employer learned of employee’s lawsuit “brief enough to give rise to a reasonable 

inference of retaliatory motive”); Estevez, 129 Wn. App. at 799-800 (termination 9

days after complaint sufficient to show prima facie case of discrimination); but

see, e.g., Anica v. Wal-Mart Stores, Inc., 120 Wn. App. 481, 489, 84 P.3d 1231 

 

9

Internal quotation marks omitted. 

10 Internal quotation marks omitted. 
No. 84351-6-I/18

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(2004) (more than 2 months between injury and termination insufficient to show 

prima facie case of disability discrimination); Francom v. Costco Wholesale

Corp., 98 Wn. App. 845, 863, 991 P.2d 1182 (2000) (15 months between 

complaint and change in work schedule insufficient to show retaliation).

At the summary judgment stage, the employee’s burden is one of 

production, not persuasion. Cornwell, 192 Wn.2d at 412. So, “to avoid summary 

judgment on causation, the employee must show only that a reasonable jury 

could find that retaliation was a substantial factor in the adverse employment 

decision.” Id. at 412-13. To show this, an employee may rely on the fact that (1) 

they took a protected action, (2) the employer knew about the action, and (3) the 

employer subjected the employee to an adverse employment action. Id. at 413 

(citing Wilmot v. Kaiser Alum. & Chem. Corp., 118 Wn.2d 46, 69, 821 P.2d 18 

(1991)). 

A. Suspensions

Smith alleges FAS issued his 5- and 15-day suspensions in retaliation for 

his September 2018 report that Lu refused to investigate two Black employees, a 

statutorily protected activity.11 He argues that both of FAS’ adverse employment 

actions were sufficiently close enough in time to the protected activity to give rise 

to a reasonable inference that his report to HR motivated FAS to suspend him.

12

 

But even if Smith’s argument had merit, FAS offers legitimate reasons for its 

 

11 At oral argument, Smith conceded that his September 2018 complaint about 

Lu is the only statutorily protected activity from which he alleges retaliatory suspensions 

on appeal. Wash. Court of Appeals oral argument, Smith v. City of Seattle, No. 84351-

6-I (July 20, 2023), at 20 min., 55 sec. to 21 min., 50 sec. (on file with court). 

12 The parties do not dispute on appeal that FAS was aware of Smith’s report 

about Lu at the time it issued each suspension.
No. 84351-6-I/19

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adverse employment actions, and Smith fails to show that those reasons are 

pretextual.

As discussed above, FAS’ investigations determined Smith violated FAS’ 

WPEs several times, warranting disciplinary action. And FAS upheld each 

disciplinary action after Smith had the opportunity to explain his actions at a 

Loudermill hearing. Still, Smith argues that FAS’ reasons for his 5-day 

suspension in January 2019 are pretextual because the “harsh discipline 

decision . . . did not fit the alleged misconduct.” And he asserts FAS’ reasons for 

his 15-day suspension in May 2020 are pretextual because of the temporal 

proximity between his discipline and the January 2019 Loudermill hearing.

But Smith offers no evidence that FAS departed from its policies and 

procedures in discipling him. And in evaluating temporal proximity, the protected 

activity at issue is Smith’s September 2018 complaint about Lu, not the 

subsequent Loudermill hearing. Even so, while temporal proximity may be 

sufficient to show a prima facie case of discrimination, the burden at the pretext 

stage requires more than temporal proximity alone. See Mackey, 12 Wn. App. 

2d 585 (fact alone that employer terminated employee 12 days after her 

complaint insufficient to create pretext for retaliation). 

Because Smith cannot show FAS’ legitimate reasons for suspending him 

amount to pretext, the trial court did not err by dismissing Smith’s retaliation

claims at summary judgment.
No. 84351-6-I/20

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B. Denial of Pay Raise

Smith also argues that FAS denied him a pay raise in retaliation for filing 

his discrimination lawsuit. Filling a lawsuit alleging discrimination is a protected 

activity under the WLAD. RCW 49.60.210(1). 

Smith filed his complaint in March 2021. FAS denied Smith a pay raise in 

December 2021, nine months after the protected activity. Smith asks us to infer 

that his lawsuit was a motivating factor in FAS denying his pay raise based on 

the temporal proximity of the two acts. But Smith continued to work for FAS 

throughout the nine months and alleges no other acts of retaliation for filing the 

lawsuit. And he makes no effort to explain why, under these circumstances, the 

temporal proximity between his lawsuit and the adverse employment action gives 

rise to an inference of causation. 

Because Smith shows no evidence that his lawsuit was a motivating factor 

in FAS’ decision to deny his pay raise, the trial court did not err by dismissing 

Smith’s retaliation claims at summary judgment.13

3. Negligent Supervision 

Smith argues the trial court erred by dismissing his negligent supervision 

claim. We disagree.

 

13 Smith also argues that his report of Lu’s misconduct amounts to an exercise of 

his First Amendment rights and that FAS retaliated against him for exercising those 

rights. Smith is incorrect. An employee engages in constitutionally protected speech 

when they speak on a matter of public concern as a public citizen while acting outside 

the scope of their official duties. Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1068 

(9th Cir. 2012). Smith made his report within the scope of his official duties. Even so, 

Smith’s First Amendment retaliation claim also fails for the same reasons discussed 

above. 
No. 84351-6-I/21

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To show negligence, an employee must establish the employer owed 

them a duty, breached that duty, and the breach proximately caused injury. 

Hertog ex rel. S.A.H. v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 

(1999). An employer negligently supervises an employee when (1) the employee 

acts outside the scope of their employment; (2) the employee presents a risk of 

harm to other employees; (3) the employer knows, or should have known in the 

exercise of reasonable care, that the employee posed a risk to others; and (4) 

the employer’s failure to supervise proximately caused injury to other employees. 

Niece v. Elmview Grp. Home, 131 Wn.2d 39, 48-49, 929 P.2d 420 (1997). A

plaintiff must base a claim of negligent supervision on tortious or wrongful 

conduct. Haubry v. Snow, 106 Wn. App. 666, 679, 31 P.3d 1186 (2001). 

Smith argues the City negligently supervised McKinney14 by failing to 

control his tortious conduct, “including verbal assault, theft, and threatening 

physical gestures” against Smith. But, even assuming this was so, Smith fails to 

show that McKinney’s conduct injured him. 

Smith alleged below that McKinney’s behavior led to several “verbal and 

physical attacks during his employment as well as numerous unwarranted 

suspensions and reprimands which resulted in a loss of income.” But he offers 

no evidence that McKinney’s conduct caused Smith’s suspensions and 

reprimands. And as much as Smith suggests he suffered emotional distress,15

 

14 While Smith’s complaint alleged negligent supervision of Ashbrook, Lu, 

McKinney, and Sheldon, he argues negligent supervision of only McKinney on appeal. 

15 Smith’s complaint alleged that FAS’ failure to supervise McKinney “caused 

intense personal harm . . . by subjecting him to repeated harassment [and a] hostile 

work environment.”
No. 84351-6-I/22

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such a claim requires Smith to “establish that the emotional distress is 

manifested by objective symptoms.” Haubry, 106 Wn. App. at 678. Smith offers 

no such evidence. 

The trial court did not err by dismissing Smith’s negligent supervision 

claim.

We reverse the court’s order dismissing Smith’s disparate treatment claim 

related to FAS’ denial of his pay raise and remand that claim for further 

proceedings. We otherwise affirm.

WE CONCUR: