IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

IRENE NGUGI, an individual,

Appellant/Cross-Respondent,

WASHINGTON STATE INSTITUTE

FOR PUBLIC POLICY; and

EVERGREEN STATE COLLEGE,

Washington agencies,

Respondents/Cross-Appellants.

DIVISION ONE

No. 72838-5-1

UNPUBLISHED OPINION

FILED: April 20, 2015

CJ1

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Dwyer, J. — Irene Ngugi, a black Kenyan woman, began working as a

researcher at the Washington State Institute for Public Policy (the Institute) in

2008. After being terminated from that position in 2010, Ngugi filed suit,

claiming, in pertinent part, that hersupervisor at the Institute (1) discriminated

against her on the basis of her race or national origin, and (2) retaliated against

herfor formally complaining about the alleged discrimination. The trial court

granted summary judgment against Ngugi on both claims. We agree that no

reasonable jury could find in Ngugi's favor and affirm the trial court. Because we

affirm summary judgment, we decline to reach the issues raised in the Institute's

cross-appeal.

I

In late 2007, the Institute, which operated under the auspices of The

Evergreen State College (Evergreen) was looking to hire a new research

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No. 72838-5-1/2

associate to assist with its work on the Basic Education Finance Task Force.

Roxanne Lieb, the Institute's Director, had final hiring authority at the Institute.

Lieb and two members of her staff interviewed Ngugi for the position and decided

to offer her the job. Lieb was aware that Ngugi was a black woman from Kenya.

Ngugi began her work with the Institute on January 2, 2008. Throughout

her employment with the Institute, she was an at-will employee, which was made

clear in Ngugi's job offer letter.

Ngugi was nota United States citizen at the time she was hired, and the

Institute had to obtain an H-1B1 work visa in order to employ her. Lieb was

aware ofthis requirement at the time she hired Ngugi. The Institute successfully

obtained an H-1 Bwork visa for Ngugi, valid through March 16, 2011. In June

2008, the Institute also decided to sponsor Ngugi's permanent residency

application, which was not required in order to continue employing her, as a

showofits support for her as an employee. During Ngugi's time with the

Institute, the Institute spent over $20,000 on legal fees and costs associated with

her immigration status.

The Institute's work was almost wholly dependent upon assignments and

funding from the legislature. During 2008, Ngugi worked almost exclusively on

the Basic Education Finance Task Force, whose work ended in December 2008.

Early in the 2009 legislative session, it became apparent that the Institute would

have insufficient assignments and funding from the legislature to continue

employing its staff at then-existing levels. In particular, it was clear that the

18U.S.C. §1184.
No. 72838-5-1/3

Institute would not be obtaining any assignments or funding for education-related

work, which was Ngugi's area of focus.

As a result of the decrease in both funding and new assignments, in early

2009, Lieb notified several employees, including Ngugi, that their employment

was at risk of being terminated. Two of these at-risk employees were Caucasian.

One of these two opted to retire in early 2009 rather than seek alternative

employment. The employment of the other Caucasian employee was ultimately

terminated due to the lack of funding. Lieb's early-2009 notification was

designed to provide the affected employees with as much warning as possible to

allow them to look for alternative employment. Ngugi expressed gratitude to Lieb

forgiving her this information.2

Because she knew that Ngugi was at risk of being let go, Lieb offered to

help herfind alternative employment and reached out to several employers in the

area that she thought might be a good fit for Ngugi. Lieb also tried to help Ngugi

develop skills to make her more professionally marketable. For instance, Ngugi

had expressed extreme reservations about public speaking and had been

reluctant to speak up at group meetings within the Institute. As a result, the

Institute paid for Ngugi to join Toastmasters to improve herskills in this area.

Lieb and another employee also joined so that Ngugi would be more comfortable

attending the meetings. When Ngugi received an award at Toastmasters, Lieb

recognized her accomplishments by notifying the Institute's staff. Ngugi

2"I wanted to thank you forforwarding the job information that you did. It was also very

kind ofyou to inform meabout the current work situation. Ireally appreciate it and all other efforts

you have taken on my behalf."

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No. 72838-5-1/4

expressed gratitude to Lieb for introducing her to Toastmasters.3

Efforts at finding alternative employment for Ngugi initially proved

unsuccessful. In March 2009, however, the possibility of Ngugi working on an

outside research project with Dr. Dan Goldhaber from the University of

Washington arose. Goldhaber intended to pursue outside funding for this

project, butfor Ngugi to work on the project, the legislature first needed to pass a

budget proviso permitting such work. Lieb communicated with her contacts in

the legislature in an effort to facilitate this. Ultimately, the proviso was partofthe

enacted budget. However, before Ngugi and the Institute could begin working on

the project, Goldhaber first had to securefunding for the project, as the proviso

did not itself provide funding.

On July 16, 2009, Lieb held a pivotal meeting with Ngugi to update her on

the status of her employment. Lieb explained that the legislature had not

assigned or funded any education-related projects for the Institute but, instead,

had directed that work to the Office of the Superintendent of Public Instruction

(OSPI). Moreover, Lieb had spoken with Jennifer Priddy, an administrator at

OSPI, who was interested in taking Ngugi on loan from the Institute to work on

education-related projects at OSPI. Ngugi agreed thatthe work at OSPI would

be a natural fit for her skills.

Also during this meeting, Lieb expressed to Ngugi concerns she had

regarding Ngugi's work at the Institute. Lieb explained that, while Ngugi had

good skills analyzing data, Lieb was of the opinion that she lacked the skills

3"Thank you for introducing me to Toastmasters. Ithink it will be very helpful to me."
No. 72838-5-1/5

necessary to function at a research associate level. That is, while she could

mechanically manipulate data, she struggled to see the big picture and the policy

implications of the data she was manipulating. Lieb had formed this opinion

based on projects she had directly worked on with Ngugi, as well as from

feedback from other employees at the Institute.4 Because it was apparent to

Lieb that Ngugi was having difficulty accepting this criticism, Lieb sent Ngugi

information regarding the EmployeeAssistance Program, a free counseling

service, the following day.

Ngugi also recalls severalspecific comments Lieb allegedly made during

this conversation. According to Ngugi, Lieb said the following: Ngugi had a good

grasp of the English language but had an "edge" to herway of speaking; Ngugi

was "tooslow"; and "it's not like you're lazy." Lieb also made a comment about

Ngugi's "big eyes."

In mid-July 2009, Lieb assigned Ngugi to work on a housing policy paper.

According to Lieb, Ngugi's first draft of the paper was wholly inadequate, reading

like an advocacy piece that simply collected opinions on the subject, rather than

presenting an objective analysis of the relevant research. After receiving this

feedback, Ngugi approached Marna Miller, another employee at the Institute, to

ask for her assistance on the paper. Miller approached Lieb about this and

expressed her desire to mentor Ngugi. Lieb supported and encouraged Miller's

efforts in this regard. Miller subsequently spentsignificant time, often after hours,

4Priddy later came to the same conclusion regarding Ngugi's skills. ("Ms. Ngugi was a

good researcher and Iwas appreciative of her skills and work attitude, but her research skills did

not extend to the policy environment. Ms. Ngugi had limited skills to recognize, formulate, and

defend publically the public policy implications ofdataorresearch findings.")
No. 72838-5-1/6

mentoring Ngugi on the project.

The proposed loan to OSPI came to fruition in early August 2009. Priddy

and Lieb decided that, in order for everyone to determine whether the

arrangement was a good fit, Ngugi would first work at OSPI on a trial basis. Ifit

worked out, OSPI would execute a contract with the Institute to reimburse the

Institute for Ngugi's time. Waiting to execute a contract also permitted the

Institute to see whether the Goldhaber study would be funded, as a decision had

not yet been reached at that time and, if funded, the study would consume much

of Ngugi's time. Ngugi started her work at OSPI on August 10, 2009.

When Ngugi went to work at OSPI, Lieb e-mailed Miller and urged her to

reach out to Ngugi about this opportunity at OSPI in the hope that her so doing

would help Ngugi be successful at OSPI.5

Initially after moving to OSPI, Ngugi continued working on the housing

paperwith Miller. As work on the paper progressed, Lieb learned from Miller that

Ngugi was having an unusual amount ofdifficulty with the assignment. In early

October 2009, after conferring with Miller about the issue, Lieb decided to have

Miller finish the paper alone. From Lieb's perspective, this would allow Ngugi to

focus on her work at OSPI, and itwould also address the concerns Miller raised

about Ngugi's ability to successfully complete the paper.

In late October 2009, the Institute learned that the Goldhaber study would

not be funded. Also in late October 2009, OSPI expressed a willingness to

5 In this e-mail, Lieb stated, "I so want her to be successful there."
No. 72838-5-1/7

execute a formal contract regarding Ngugi.6 However, given that Ngugi's salary

at the Institute was substantially higher than that of OSPI employees engaged in

comparable work, OSPI was unable to reimburse the Institute more than $6,257

per month for Ngugi's services. This was less than her then-current salary of

$7,206.

On October 28, 2009, Lieb once again spoke to Ngugi regarding the

status of her employment with the Institute. Lieb relayed OSPI's interest in

contracting for Ngugi's labor, but at a reduced salary, and Ngugi expressed

agreement. Lieb also told Ngugi that she would not be working on the Goldhaber

study. Additionally, Lieb explained that, although the Institute would continue to

support Ngugi's immigration processes, the issue would be revisited in the event

ofan audit. Ngugi asked Lieb if she would be returning to work at the Institute

after her time with OSPI was done, and Lieb told her "no." This was contrary to

the impression Ngugi had been given previously, that her placement at OSPI

would be temporary. This change was due to both the Institute's continued lack

of education-related work and Lieb's concerns about Ngugi's work performance.

After Lieb's October 28, 2009 meeting with Ngugi, Lieb executed a

Personnel Action Form (PAF) to effectuate the discussed pay reduction required

by the expected contract with OSPI. Lieb then sent theform to Evergreen for

finalization.

The only impact that the PAF, once finalized, would have had on the

6The following e-mail exchange transpired:

Lieb: "Howdy Jennifer, hope this week is better than lastin terms ofstresslevel. / need to

make some decisions about Irene; are you ready to take some type of action?"

Priddy: "Yes, I am ready to do a contract."

(Emphasis added.)
No. 72838-5-1/8

circumstances of Ngugi's employment was to reduce her salary. The form

indicated that the pay reduction would be effective from November 1, 2009

through June 30, 2010, the date by which Priddy indicated OSPI would

reconsider the circumstances of the arrangement. Nothing in the form, including

the reference to June 30, 2010, changed the at-will nature of Ngugi's

employment or otherwise promised Ngugi employment for any period of time.

The next day, an attorney representing Ngugi contacted Evergreen and

alleged that Ngugi had been discriminated against. This was the first time Ngugi

had claimed that the Institute had discriminated against her.

Lieb learned of this development within the next couple of days. Desiring

guidance regarding how to handle the situation, Lieb contacted the Attorney

General's Office. An assistant attorney general advised Lieb to put the reduction

in pay on hold while more details could be learned regarding Ngugi's allegations.

Although the reduction in pay had been set into motion prior to anyclaims of

discrimination, Lieb and the Institute's counsel wanted to ensure that there was

not even an appearance of retaliation.

Pursuant to this legal advice, Lieb successfully took steps to intercept the

PAF and prevent the reduction in pay. The only impact this had on Ngugi was to

prevent hersalary from being reduced. Thus, Ngugi continued working at OSPI

at the higher salary figure. In fact, her salary was never reduced for the duration

of her employment with the Institute.7

Ngugi's discrimination complaint did not stop the Institute and OSPI from

7During Ngugi's employment with the Institute, she received two pay raises—one raising

hersalary from $6,125 to $7,025 permonth and another raising it from $7,025 to $7,206 per

month.

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No. 72838-5-1/9

continuing to work toward finalizing a contractto formalize the loan of Ngugi to

OSPI. Indeed, Lieb and Priddy continued their efforts in this regard until late

November 2009, when legal issues arose that precluded a contract from being

executed.

At that time, immigration attorneys assisting the Institute and OSPI opined

that the proposed contract likely would not comply with immigration laws. These

laws prohibit one employer from hiring a worker using an H-1 Bwork visa and

then loaning that worker out to a different employer.8 For such an arrangement

to be appropriate, the employer holding the H-1 Bvisa needed to maintain a

supervisory relationship with the worker. This would not have been the case if

Ngugi had continued to work on loan to OSPI.

Moreover, advice from these attorneys also led OSPI to conclude that it

was unable to hire Ngugi directly for the position in which she had been working.

To employ a worker under an H-1 Bvisa, an employer must be able to represent

to immigration officials that the worker has skills that the employer cannot

otherwise find in thework force. Based on the nature of thework Ngugi was

performing for OSPI, Priddy did not believe that OSPI could make such a

representation.

At that point, OSPI could neither take Ngugi "on loan" from the Institute

nor hire her directly for the work shewas currently performing. As a result, the

Institute decided toend Ngugi's employment. On December 4, 2009, Lieb

notified Ngugi that her employment with the Institute would end on December 31,

8Indeed the approval notice for Ngugi's H-1 Bvisa stated: "The foreign worker(s) can

work for the petitioner, but only asdetailed in the petition and for the period authorized. Any

change in employment requires a new petition."
No. 72838-5-1/10

2009. While the Institute could have discharged Ngugi immediately, Lieb

decided to give Ngugi roughly a month's notice in order to allow her time to find

alternative employment or otherwise change her immigration status so she could

remain in the country.

After learning about Ngugi's situation, another administrator at OSPI,

Robin Munson, decided to offer a different position directly to Ngugi. Munson

had experienced difficulty filling the position at issue and, thus, felt she could

make the necessary representations regarding the need to employ Ngugi under

an H-1 B visa. The position, however, was at a lowerlevel than the one OSPI

had originally intended for Ngugi to fill and had a correspondingly lower annual

salary of$50,000. OSPI formally offered the position to Ngugi on December 16,

2009.

Although Ngugi did not immediately accept this offer, OSPI spent a

significant amount oftime and effort working through the immigration issues

associated with her visa. However, on December 22, 2009, before Ngugi had

communicated to OSPI whether she would accept the lower-paying position, the

annual cap on the number of H-1 Bvisas that the federal government could

award that year was met.

While this meant that OSPI could not immediately seek a new H-1 B visa

for Ngugi, it could still have sought to transfer her existing visa from the Institute

to OSPI, and she could have worked for OSPI as soon as the transfer application

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No. 72838-5-1/11

had been filed by OSPI.9 Due to this complication, though, OSPI could not

employ Ngugi in the new position until the first week of January 2010 at the

earliest. This posed a problem because Ngugi's employment with the Institute

was scheduled to end December 31, 2009. To prevent any lapses in Ngugi's

employment, which might have led to her deportation, Lieb agreed to extend the

effective date of Ngugi's discharge to January 8, 2010. In the end, however,

Ngugi turned down the OSPI position.

Ngugi's employment with the Institute thus ended on January 8, 2010.

Because the Institute and OSPI were never able to execute a contract regarding

Ngugi's work, the Institute was never reimbursed for the more than $35,000 in

salary it had paid to Ngugi while she worked at OSPI.

Ngugi filed this lawsuit on January 27, 2012, bringing claims for race and

national origin discrimination, hostile work environment, disparate treatment,

retaliation, negligent infliction of emotional distress, tortious interference with

business expectancy, and unpaid wages and willfully withheld wages. On

August 2, 2013, the trial court dismissed all of Ngugi's claims with prejudice on

summary judgment. Ngugi now appeals the summary dismissal of only her race

and national origin discrimination and retaliation claims.

In addition to its motion for summary judgment, the Institute10 alsofiled a

motion to strike various materials submitted by Ngugi with her summary

98 US C §1184(n) (1) ("Increased portability of H-1B status[.]... Anonimmigrant alien

described in paragraph (2) who was previously issued a[n] [H-1B] visa ... is authorized to accept

new employment upon the filing by the prospective employer of a new petition on behalf of such

nonimmigrant as provided under subsection (a) of this section. Employment authorization shall

continue for such alien until the new petition is adjudicated."). 10 For ease, we refer tothe combined respondents/cross-appellants as the "Institute.

11
No. 72838-5-1/12

judgment opposition pleadings. The trial court recognized that the materials the

Institute moved to strike had "problematic admissibility issues," and criticized

Ngugi's handling ofthese materials. Nevertheless, the court declined to rule on

the Institute'smotion to strike given that itwas granting its summary judgment

motion.

II

Ngugi first contends that the trial court improperly granted summary

judgment in favor of the Institute with respect to her disparate treatment claim.

This is so, she asserts, because she presented sufficient evidence that the

Institute acted with a discriminatory purpose in taking adverse employment

actions against her. We disagree.

We review a trial court's grant ofsummary judgment de novo. Camicia v.

Howards. Wriaht Constr. Co., 179 Wn.2d 684, 693, 317 P.3d 987 (2014).

Summary judgment is appropriate only when there is no genuine issue asto any

material fact and the moving party is entitled to judgment as a matter of law. CR

56(c); Camicia, 179 Wn.2d at 693. When making this determination, we consider

all facts and make all reasonable, factual inferences in the light most favorable to

the nonmoving party. Young v. Kev Pharms., Inc., 112 Wn.2d 216, 226, 770

P.2d 182 (1989).

Under Washington's Law Against Discrimination (WLAD), it is an unfair

practice for an employer to refuse to hire any person on the basis of a protected

characteristic, including race and national origin. RCW 49.60.180. "At trial, the

WLAD plaintiff must ultimately prove that [the protected characteristic] was a

12
No. 72838-5-1/13

'substantial factor' in an employer's adverse employment action." Scrivener v.

Clark Coll.. 181 Wn.2d 439, 444, 334 P.3d 541 (2014). A "substantial factor"

means that the protected characteristic was a significant motivating factor

bringing about the employer's decision, not that the protected characteristic was

the sole factor in the decision. Scrivener, 181 Wn.2d at 444.

"[Sjummary judgment to an employer is seldom appropriate in the WLAD

cases." Scrivener, 181 Wn.2d at 445. To overcome summary judgment, a

plaintiff needs to show only "that a reasonable jury could find that the plaintiff's

protected trait was a substantial factor motivating the employer's adverse

actions." Scrivener, 181 Wn.2d at 445 (emphasis added). "This is a burden of

production, not persuasion, and may be proved through direct or circumstantial

evidence." Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 149, 94 P.3d 930 (2004).

Where a WLAD plaintiff lacks directevidence of discrimination, we use the

burden-shifting analysis articulated in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), to determine the proper order

and nature of proof for summary judgment.11 The recentWashington Supreme

Court case Scrivener v. Clark College well-elucidates this analysis:

Under the first prong of the McDonnell Douglas framework, a

plaintiff bears the initial burden of establishing a prima facie case of

discrimination, which creates a presumption of discrimination.

Riehl, 152 Wn.2d at 149-50; Kastanis v. Educ. Emps. Credit Union,

122 Wn.2d 483, 490, 859 P.2d 26, 865 P.2d 507 (1993). Once the

plaintiff establishes a prima facie case, the burden of production

shifts to the employer to articulate a legitimate, nondiscriminatory

11 Because the WLAD is patterned afterTitle 7 ofthe Civil Rights Act of 1964, 42 U.S.C.

2000(e) Washington courts rely on federal decisions interpreting Title 7 todecide issues under

the WLAD. See, e.g.. Oliverv. Pac. Nw. Bell Tel. Co.. 106 Wn.2d 675, 678, 724 P.2d 1003

(1986); Haubrv v. Snow. 106Wn. App. 666, 674 n.7, 31 P.3d 1186 (2001).

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No. 72838-5-1/14

reason for the adverse employment action. Grimwood v. Univ. of

Puget Sound, Inc., 110 Wn.2d 355, 363-64, 753 P.2d 517 (1988).

"Ifthe Defendant meets this burden, the third prong of the

McDonnell Douglas test requires the Plaintiff to produce sufficient

evidence that Defendant's alleged nondiscriminatory reason for [the

employment action] was a pretext." Humef v. Am. Disposal Co.1,

124 Wn.2d [656,] 667[, 880 P.2d 988 (1994)]. Evidence is sufficient

to overcome summary judgment if it creates a genuine issue of

material fact that the employer's articulated reason was a pretext

for a discriminatory purpose. Id. at 668; Grimwood, 110 Wn.2d at

364; Riehl. 152 Wn.2d at 150.

... An employee may satisfy the pretext prong by offering

sufficient evidence to create a genuine issue of material fact either

(1) that the defendant's reason is pretextual or(2) that although the

employer's stated reason islegitimate, discrimination nevertheless

was a substantial factor motivating the employer. Fell v. Spokane

Transit Auth., 128 Wn.2d 618, 643 n.32, 911 P.2d 1319 (1996); see

Wilmot v. KaiserAlum. & Chem. Corp., 118 Wn.2d 46, 73, 821 P.2d

18 (1991V. Grimwood, 110 Wn.2d at 365.

An employee does not need to disprove each ofthe

employer's articulated reasonsto satisfy the pretext burden of

production. Our case law clearly establishes that it is the plaintiff's

burden at trial to prove that discrimination was a substantial factor

in an adverse employment action, notthe only motivating factor.

See Mackavf v. Acorn Custom Cabinetry. Inc.], 127 Wn.2d [302,]

309-11[, 898 P.2d 284 (1995)]. An employer may be motivated by

multiple purposes, both legitimate and illegitimate, when making

employment decisions and still be liable under the WLAD. See id^

Scrivener. 181 Wn.2d at 446-47.

"If the plaintiff satisfies the McDonnell Douglas burden ofproduction

requirements, the case proceeds to trial, unless thejudge determines that no

rational fact finder could conclude that the action was discriminatory." Scrivener,

181 Wn.2dat446.

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No. 72838-5-1/15

When someone is both hired and fired by the same decision-maker within

a relatively short period of time, the "same actor" or "same decision maker"

inference applies; that is, "there is a strong inference that he or she was not

discharged because of any attribute the decision makers were aware of at the

time of hiring." Hill v. BCTI Income Fund-I, 144Wn.2d 172, 189, 189, 23 P.3d

440 (2001), overruled on other grounds by McClartv v. Totem Elec, 157 Wn.2d

214, 137 P.3d 844 (2006): accord Bradley v. Harcourt. Brace & Co., 104 F.3d

267, 270-71 (9th Cir.1996) ("[WJhere the same actor is responsible for both the

hiring and the firing of a discrimination plaintiff, and both actions occur within a

short period oftime, a strong inference arises that there was no discriminatory

motive."). "For a plaintiff to prevail under such circumstances, the evidence must

answer an obvious question: if the employer is opposed to employing persons

with a certain attribute, why would the employerhave hired such a person in the

first place?" Hill, 144 Wn.2d at 189-90.

To establish a prima facie case of disparate treatment, a plaintiff must

show that (1) he or she belongs to a protected class, (2) he or she wastreated

less favorably in the terms or conditions of her employment than a similarly

situated, nonprotected employee, and (3) he or she and the nonprotected

"comparator" were doing substantially similar work.12 Washington v. Boeing Co.,

105 Wn. App. 1, 13, 19 P.3d 1041 (2000).

"The burden of establishing a prima facie case of disparate treatment is

not onerous." Tex. Dep't of Cmtv. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.

12 The elementsfor a prima facie case are notabsolute butvary based on the relevant

facts. Tex. Dep't of Cmtv. Affairs v. Burdine. 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207

(1981V McDonnell Douglas. 411 U.S. at 802 n.13: Grimwood, 110 Wn.2d at 363-64.

-15-
No. 72838-5-1/16

Ct. 1089, 67 L.Ed.2d 207 (1981). "The 'requisite degree of proof necessary to

establish a prima facie case ... is minimal and does not even need to rise to the

level of a preponderance of the evidence.'" Fulton v. Dep't of Social & Health

Servs.. 169 Wn. App. 137, 152, 279 P.3d 500 (2012) (alteration in original)

(quoting Wallis v. J.R. SimplotCo., 26 F.3d 885, 889 (9th Cir.1994)).

There is no real dispute as to the first and third aspects of Ngugi's prima

facie case. As to the second aspect, Ngugi alleges in her declaration that the

following adverse employment actions were taken against her: she, unlike other

employees, was offered no systematic feedback, training, or mentoring, she was

given fewer assignments than others, she was not invited to staff meetings, her

relationships with otherresearchers were discouraged, and she was eventually

terminated from her position. Ngugi established a prima facie case ofdisparate

treatment.

Thus, the burden of production shifts to the Institute to articulate a

legitimate, nondiscriminatory reason for each adverse employment action. With

regard to feedback, the Institute presented evidence that it did not begin giving its

employees formal evaluations until 2010, after Ngugi had been terminated. This

is significant because, in her own declaration, Ngugi acknowledges receiving

informal feedback intermittently during her time at the Institute. Ngugi's

allegation that, beginning in early 2009, after work on the Basic Education

Finance Task Force ended, she was given fewer assignments is entirely

consistent with evidence presented by the Institute that, at about that time, it

became clear that the Institute would receive less funding and fewer assignments

16
No. 72838-5-1/17

from the legislature, particularly education-related ones. Moreover, the parties

agree that Lieb communicated this information to Ngugi soon thereafter.

Regarding staff meetings, the Institute presented evidence that, before she

began working at OSPI, Ngugi was invited to every Institute staff meeting. This

evidence is consistent with Ngugi's allegation that she was not invited to a

meeting sometime after July 2009. Additionally, the Institute presented

significant evidence contrary to Ngugi's allegation that Lieb had discouraged her

relationships with other Institute researchers, including an e-mail from Lieb

asking Miller to reach out to Ngugi and support her in her transition to the

position at OSPI. Asto why Ngugi wasterminated, the Institute presented

evidence that Ngugi was at risk of being terminated beginning in early 2009, that

Lieb, knowing this, had tried tofind Ngugi alternative employment, thatthe

arrangement with OSPI had shown the most promise, that, dueto complications

related to Ngugi's immigration status, the OSPI arrangement fell through, and

that only then was Ngugi let go.

Finally, the Institute presented significant evidence of nondiscriminatory

conduct toward Ngugi, including: (1) hiring her, (2) twice raising hersalary, (3)

sponsoring herfor permanent residency, (4) spending over $ 20,000 on attorney

feesto support herwork visa and permanent residency applications, (5) actively

seeking alternative employment opportunities for herafter determining thatthe

Institute could not continue employing her, (6) paying for her to attend

Toastmasters to help her be more marketable, (7) employees attending

Toastmasters meetings with herto make her more comfortable, (8) urging the

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No. 72838-5-1/18

legislature to include in its budget a proviso for a project that would allow the

Institute to continue employing her, (9) paying her over $35,000 while she

worked at OSPI when there was insufficient work at the Institute for her, (10)

attempting to secure a contract with OSPI that would permit her to work at OSPI

withoutjeopardizing her immigration status, and (11) extending her termination

date by a week to avoid jeopardizing her immigration status.

Because the Institute articulated legitimate reasons for its actions, the

burden shifts back to Ngugi to offersufficient evidence that the proffered

nondiscriminatory reasons were pretexts. In addition to alleging that only she

wassubjected to the adverse employment actions detailed above, Ngugi offers

the comments Lieb made to her during their July 16, 2009 meeting as evidence

of pretext. Specifically, as to Lieb's comment about Ngugi's "big eyes," Ngugi

asserts that, "such a portrayal offrightened black people with 'wide eyes' is

consistentwith the historic portrayal of blacks' anthropromorphic [sic] features to

a white audience." Appellant's Br. at 35. Ngugi also references Lieb's comments

about Ngugi not being lazy and speaking with an "edge" as examples of Lieb

using "stereotypical, offensive personal language about Ngugi." Appellant's

Reply Br. at 6.

As set forth above, to overcome summary judgment, Ngugi must establish

that the Institute took adverse employment action against her and that her race

or national origin was a significant factor motivating that action. Moreover,

because this claim is subject to the same actor inference,she must suggest an

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answer as to why, ifthe Institute is opposed to employing persons of a certain

race or national origin, the Institute hired her in the first place.

The Institute presented significant evidence of both legitimate reasons for

the adverse employment actions alleged by Ngugi and nondiscrimination. By

contrast, Ngugi presented very little evidence suggesting pretext and she does

not even suggest an answer to the same decision-maker inference. No

reasonable jury could find for Ngugi on this evidence. Therefore, Ngugi did not

meet her burden and summary judgment was properly granted in the Institute's

favor.

Ill

Ngugi next contends thatthe Institute unlawfully retaliated against her.

This is so, she asserts, because the Institute took adverse action against herin

response to her discrimination complaints. We disagree.

TheWLAD prohibits retaliation against a person for opposing practices

forbidden by the act. RCW 49.60.210(1). RCW 49.60.210(1) states, in pertinent

part, "It 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 this chapter." The same McDonnell Douglas burdenshifting protocol applies to a claim for retaliation.13 HE 144 Wn.2d at 180.

13 For the first time on appeal, Ngugi suggests that her retaliation claim is based not only

on circumstantial evidence, butalso on direct evidence. Addressing this issue would require

conducting a different analysis than that setforth in McDonnell-Douglas, see Heqwine v.

Longview Fibre Co., 162 Wn.2d 340, 172 P.3d 688 (2007), no part ofwhich was called to the

attention ofthe trial court. We decline to address this issue. RAP 2.5(a); RAP 9.12.

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No. 72838-5-1/20

However, the "same actor" inference does not apply with respect to retaliation

claims.14

To establish a prima facie case of retaliation, a plaintiff must show that (1)

he or she engaged in statutorily protected activity, (2) his or her employertook

some adverse employment action against him or her, and (3) there is a causal

link between the employee's activity and the employer's adverse action. Estevez

v. Faculty Club of Univ. of Wash., 129 Wn. App. 774, 797, 120 P.3d 579 (2005).

An employee engages in WLAD-protected activity when the employee

opposes employment practices forbidden by antidiscrimination law orother

practices that are reasonably believed to bediscriminatory. Short v. Battle

Ground Sch. Dist.. 169Wn. App. 188, 205, 279 P.3d 902 (2012). The plaintiff

need not show that retaliation was the only or "butfor" cause of the adverse

employment action. Allison v. Hous. Auth. of Seattle, 118 Wn.2d 79, 95-96, 821

P.2d 34 (1991). However, the plaintiff must show that retaliation was at least a

"substantial factor" in the employer's decision to take adverse action. Allison,

118Wn.2dat95.

Ngugi makes out a prima facie case of discrimination. The record

establishes that Ngugi began the process offiling a formal discrimination

14 We have previously explained why the inference does not apply to retaliations claims.

[W]ithout the inference in discrimination cases, "employers could be discouraged

from hiring the very personsthe Legislature intended the Law Against

Discrimination to protect, fearful that doing so would make them more vulnerable,

rather than less, to legal claims ofunlawful discriminatory animus if legitimate

business reasons later required discharging such a person." [HiM, 144Wn.2d] at

190 n.13. Similar policy concerns are not present [in the retaliation context].

Refusing to adopt the same actor inference in retaliation claims would not make

theemployer more vulnerable to such claims. Rather, adopting this inference

would allow an employer togrant a raise or promotion prior to implementing a

termination as a means ofdecreasing their exposure to a valid retaliation claim.

Lodis v. Corbis Holdings. Inc., 172 Wn. App. 835, 853, 292 P.3d 779 (2013).

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No. 72838-5-1/21

complaint with Evergreen on October 29, 2009. Additionally, it is undisputed that

Institute staff was made aware of this complaint within days and that, soon

thereafter, Ngugi was terminated.15

Ngugi also alleges that a contract guaranteeing her employment at OSPI

through June 2010 was destroyed in retaliation for herdiscrimination complaint.

However, Ngugi proffers no evidence ofthis contract. It is true that the Institute

intercepted the PAF and prevented it from taking effect but, as the only effect of

this action was to prevent Ngugi's pay from being cut, this cannot constitute an

adverse employment action. Ngugi's retaliation claim cannot rest on the mere

allegations that another contract existed, that the purported contract guaranteed

Ngugi's employment atOSPI for a fixed term, and that the Institute destroyed it.

See CR 56(e).16

The Institute also successfully articulates a legitimate, nonretaliatory

reason for the adverse employment action. The Institute offers the same

explanation as above asto why Ngugi was terminated. Specifically, the Institute

presented evidence that Ngugi was finally terminated in December 2009, after

months of warning that her employment was at risk, because the Institute

issee Kahn v. Salerno. 90Wn. App. 110,131, 951 P.2d 321 (1998) ("[l]f the employee

establishes that heorshe participated in an opposition activity, the employer knew ofthe

opposition activity, and he or she was discharged, then a rebuttable presumption is created in

favor ofthe employee that precludes usfrom dismissing the employee's case."). 16 Ngugi also asserts that she was removed asthe primary author on the housing paper in retaliation for her discrimination complaint. However, there issignificant evidence in the record

to the contrary. Specifically, the record establishes that, on October 7, 2009, Ngugi was told that

she would no longer work on the housing project and that Miller alone would complete the

analysis and writing and present the paper to the legislature. Moreover, shortly before that, Ngugi had been informed that significant work still needed to bedone on the project. While Ngugi may have been genuinely surprised to find that she was not the paper's lead author, there can be no

question that this eventuality was set in motion weeks before Ngugi made her discrimination

complaint.

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No. 72838-5-1/22

became aware in November 2009 that, due to limitations imposed by Ngugi's

H-1B visa, she could no longer work "on loan" to OSPI.17

The Institute also offers evidence of nonretaliation, including that, even

after Ngugi made her discrimination complaint, the Institute (1) continued to work

to secure a contract with OSPI that would permit her to work there without

jeopardizing her immigration status, (2)set Ngugi's termination date to give her

roughly a month to find alternative employment or otherwise change her

immigration status, and (3) extended Ngugi's termination date to avoid

jeopardizing her immigration status.

Thus, the burden shifts back to Ngugi to present evidence of pretext. The

only additional evidence of pretext Ngugi offers isthat, on December 22, 2009,

the annual cap on H-1 Bvisas that the federal government could award that year

was reached. Ngugi allegesthat, from this fact, there is an inference that her

termination was timed to sabotage her immigration status by making it difficult for

her to obtain a new visa. As Ngugi presented no evidence that Lieb—or anyone

else at the Institute—was aware of this cap or could have anticipated when it

would be met, this is not evidence but, rather, is pure speculation.18 Moreover,

17 The existenceof thisimmigration circumstance is reinforced by the Declaration ofBart

Stroupe, an immigration law expert offered by Ngugi. ("The evidence suggests that WSIPP was

not aware initially thatthe assignment ofMs. Ngugi to OSPI wasin violation ofher H-1 Bstatus.

This is indicated in the WSIPP's e-mail forwarded to Nicole Ack on October 28, 2009, in which

WSIPP confirmed that they did not believethere was an issue with the arrangement.

Subsequently, in November 2009, it appears thatWSIPP became aware they were required to

either amend Ngugi's H1-B petition or have OSPI applya new H1-B visa.").

18 See Grimwood, 110 Wn.2d at 359-60 ("Afact is an event, an occurrence, or

something that exists in reality. Webster's Third New Int'l Dictionary 813(1976). It iswhat

took place, an act, an incident, a reality as distinguished from supposition or opinion. 35

C.J.S. Fact489 (1960). The "facts" required by CR 56(e) to defeata summary judgment motion

are evidentiary in nature. Ultimate facts or conclusions offact are insufficient. See Hatch v.

Bush. 215 Cal. App. 2d 692, 30Cal. Rptr. 397 (1963). Likewise, conclusory statements offact

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there is overwhelming evidence in the record that Lieb was concerned with

protecting Ngugi's immigration status, not sabotaging it.

Here too, the Institute presented significant evidence not only of legitimate

reasons for the adverse employment action, but also of nonretaliation by the

Institute. Once again, Ngugi, by contrast, presented relatively little evidence of

retaliatory motive. No reasonable jurycould find for Ngugi on this evidence.

Therefore, Ngugi did not meet her burden and summary judgment in the

Institute's favor was proper.

IV

On review of an order granting or denying a motion for summary

judgment, our primary purpose is to engage in the same inquiry as the trial court.

RAP 9.12; see also Mithouo v. Apollo Radio of Spokane, 128Wn.2d 460, 462,

909 P.2d 291 (1996) ("The purpose of[RAP 9.12] is to effectuate the rule that

the appellate court engagesin the same inquiry as the trial court.'" (quoting

Wash. Fed'n of State Emos. v. Office of Fin. Mgmt., 121 Wn.2d 152, 157, 849

P.2d 1201 (1993))). Moreover, "'[principles ofjudicial restraint dictate thatif

resolution of an issue effectively disposes of a case, we should resolve the case

on that basis without reaching any other issues that might be presented.'"

Havden v. Mut. of Enumclaw Ins. Co.. 141 Wn.2d 55, 68, 1 P.3d 1167 (2000)

(internal quotation marks omitted) (quoting State v. Peterson, 133 Wn.2d 885,

894, 948 P.2d 381 (1997) (Talmadge, J. concurring)). For these reasons,

because the foregoing analysis effectively disposes ofthis case, we decline to

will notsuffice. American Linen Supply Co. v. Nursing Home BIdg. Corp., 15Wn. App. 757, 767,

551 P.2d 1038 (1976).").

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address the bulk of the issues raised by the Institute in its cross-appeal.

However, we choose to address one issue raised in order to clarify the

applicability of law not cited to us by either party.

The Institute contends that the trial court erred in not striking the

declaration of Bart Stroupe, an immigration law expert. This is so, it asserts,

because Ngugi failed to disclose Stroupe's identity in her witness disclosures and

discovery responses. By way of appellate relief, the Institute seeks for us to

exclude the declaration (the summary judgment equivalent of a witness being

excluded at trial).

"A trial court's discretion to exclude witnesses is cabined by this court's

holdings in BurnetT v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036

(1997),] and its progeny." Jones v. City of Seattle. 179 Wn.2d 322, 338, 314

P.3d 380 (2013). Before imposing "'one of the harsher remedies allowable under

CR 37(b),'" the trial court must explicitly consider (1) whether a lesser sanction

would probably suffice, (2) whether the violation at issue was willful or deliberate,

and (3) whether the violation substantially prejudiced the opponent's ability to

prepare for trial. Burnet, 131 Wn.2d at 494 (quoting Snedigar v. Hodderson, 53

Wn. App. 476, 487, 768 P.2d 1 (1989)), aff'd in relevant part, 114Wn.2d 153,

169, n.37, 786 P.2d 781 (1990). Witness exclusion is a severe sanction to which

Burnet applies. Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 690, 132 P.3d 115

(2006). An appellate court cannot consider the facts in the first instance as a

substitute for the trial court findings that precedent requires. Blair v. TA-Seattle

E. No. 176, 171 Wn.2d 342, 351, 254 P.3d 797 (2011).

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The Institute seeks relief from this court without mentioning Burnet or its

progeny, just as itfailed to bring these authorities to the attention of the trial

court. The Institute's requested relief—the exclusion of Ngugi's witness—may

only be granted after the trial court explicitly considers the required issues and

makes a record of its findings. We may not consider these issues in the first

instance. Blair, 171 Wn.2d at 351. Because the trial court was not requested to

conduct the necessary analysis, and did not do so of its own volition, the Institute

is precluded from seeking the relief it requests.

V

The Institute filed with this court a lengthy motion to strike portions of

Ngugi's appellate briefs. We have previously made clear our view of such

motions:

[The Institute] could have addressed this issue in [its] reply brief in

a few sentences rather than filing a separate motion to strike. This

course would have saved time and resources of the parties and the

court without diminishing the quality of the decision-making

process.

In re Marriage of Rostrom, 184 Wn. App. 744, 764, 339 P.3d 185 (2014).

We deny the motion.

Affirmed.

We concur:

25