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 DIVISION ONE No. 72838-5-1 UNPUBLISHED OPINION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

O 33»

CO 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 thebasis ofher race ornational origin, and (2) retaliated against herfor formally complaining about the alleged discrimination. Thetrial court 

### granted summaryjudgment against Ngugi on both claims. We agree thatno reasonablejury could find in Ngugi's favor and affirm the trial court. Because we 

### affirm summaryjudgment, wedecline 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 o
33 m o oNo. 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 

### heremployment 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 thetime she hired Ngugi. TheInstitute 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 orderto continue employing her, as a showofits support for her as an employee. During Ngugi's time with the 

### Institute, the Institute spentover $20,000 onlegal fees and costs associated with her immigration status. The Institute's work was almostwholly dependent upon assignments and 

### funding from thelegislature. During 2008, Ngugi worked almost exclusively on the Basic Education Finance Task Force, whose workended in December 2008. 

### Early in the2009 legislative session, it became apparentthattheInstitute would have insufficient assignments and funding from the legislature to continue 

### employing its staffatthen-existing levels. In particular, it wasclearthat 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 offocus. 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 ofthese at-risk employees were Caucasian. One ofthese 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. Ngugiexpressed 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 outto 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 hermore professionally marketable. For instance, Ngugi had expressed extremereservations aboutpublic speaking and had been reluctant to speak up at groupmeetings within the Institute. As a result, the Institute paid for Ngugi tojoin Toastmasters to improve herskills in this area. Lieb and another employee alsojoined so that Ngugi would be morecomfortable 

### attending the meetings. When Ngugi received an award at Toastmasters, Lieb recognized her accomplishments bynotifying the Institute's staff. Ngugi

2"I wanted to thankyou forforwarding the job information that you did. It was also very kind ofyou toinform meabout thecurrent work situation. Ireally appreciate it and all otherefforts you have taken on my behalf."
-3-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 projectwith 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 

### budgetproviso permitting such work. Lieb communicated with her contacts in 

### the legislature in an effort tofacilitate this. Ultimately, the proviso was partofthe enactedbudget. However, before Ngugi and the Institute could begin working on 

### theproject, Goldhaberfirst had to securefunding for theproject, as theproviso did not itself provide funding. 

### On July 16, 2009, Lieb held a pivotal meeting with Ngugi toupdate her on the status of heremployment. Lieb explained that the legislature had not 

### assigned orfunded any education-related projects for the Institute but, instead, had directed that work to the Office of the Superintendent ofPublic Instruction 

### (OSPI). Moreover, Lieb had spoken with Jennifer Priddy, an administrator at OSPI, who was interested in taking Ngugi on loan from the Institute towork on 

### education-related projects at OSPI. Ngugi agreed thatthework atOSPI would be a natural fit for her skills. 

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

### regarding Ngugi's work atthe Institute. Lieb explained that, while Ngugi had 

### good skills analyzing data, Lieb was ofthe opinion that shelacked the skills
3"Thankyou for introducing me to Toastmasters. Ithink itwill 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 ofthe 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 madeduring this conversation. According to Ngugi, Lieb said the following: Ngugi had a good 

### grasp oftheEnglish language but had an "edge" to herway ofspeaking; Ngugi was "tooslow"; and "it's notlike you're lazy." Lieb also made a comment about Ngugi's "big eyes." 

### In mid-July 2009, Lieb assigned Ngugi towork on a housing policy paper. 

### According to Lieb, Ngugi's first draft ofthe paperwas wholly inadequate, reading like anadvocacy piece that simply collected opinions on thesubject, ratherthan 

### presenting an objective analysis ofthe relevant research. After receiving this feedback, Ngugi approached Marna Miller, anotheremployee atthe Institute, to ask for her assistance on the paper. Miller approached Lieb about this and 

### expressed her desire tomentor Ngugi. Lieb supported and encouraged Miller's efforts in this regard. Miller subsequently spentsignificanttime, often after hours,
4Priddy latercame to the same conclusion regarding Ngugi's skills. ("Ms. Ngugi was a 

### good researcherand Iwas appreciative ofher skills and work attitude, butherresearch skills did not extend to the policy environment. Ms. Ngugi had limited skills to recognize, formulate, and defend publically thepublic 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, iffunded, 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 aftermoving to OSPI, Ngugi continued working on the housing 

### paperwith Miller. As work on the paperprogressed, Lieb learned from Millerthat 

### 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, thiswould 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 Inthis 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 alsotold Ngugi that she would not beworking on the Goldhaber study. Additionally, Lieb explained that, although the Institute would continue to supportNgugi's immigration processes, the issue would be revisited in the event 

### ofan audit. Ngugi asked Lieb if she would be returning towork 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 herplacement atOSPI would be temporary. This change was due toboth 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 payreduction required 

### by theexpected contractwith OSPI. Lieb then sent theform toEvergreen for
finalization. 

### The only impactthat the PAF, once finalized, would have had on the
6The following e-mail exchange transpired: Lieb: "Howdy Jennifer, hope this week isbetterthan lastin terms ofstress level. /need to make some decisionsabout Irene; are you ready to take some type ofaction?" Priddy: "Yes, Iam 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 withinthe next couple ofdays. 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 priorto 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 tooksteps 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 atOSPI at the higher salaryfigure. 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 payraises—one raising hersalary from $6,125 to$7,025 permonth andanother raising it from $7,025 to$7,206 per month.
-8-No. 72838-5-1/9 

### continuing to work toward finalizing a contracttoformalize the loan ofNgugi to OSPI. Indeed, Lieb and Priddy continued their efforts in this regard until late November 2009, when legal issues arose that precluded a contractfrom being
executed. 

### At thattime, immigration attorneys assisting the Institute and OSPI opined 

### that theproposed contract likely would not comply with immigration laws. These 

### laws prohibit one employerfrom hiring aworker using an H-1 Bwork visa and then loaning that worker outto a different employer.8 For such anarrangement 

### to beappropriate, 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 towork on loan toOSPI. 

### Moreover, advice from theseattorneys also led OSPI to conclude that it 

### was unable to hire Ngugi directly for the position in which shehad been working. 

### To employ aworker under an H-1 Bvisa, an employer mustbe able to represent to immigration officials thatthe worker has skills thatthe employer cannot otherwise find in thework force. Based on thenature ofthework Ngugi was 

## performing for OSPI, Priddy did notbelieve that OSPI could make such a representation. 

### Atthat point, OSPI could neithertake Ngugi "on loan" from the Institute nor hire herdirectly for the work shewas currently performing. As a result, the Institute decided toend Ngugi's employment. On December4, 2009, Lieb 

## notified Ngugi that heremploymentwith the Institute would end on December 31, 8Indeed the approval notice for Ngugi's H-1 Bvisa stated: "Theforeign worker(s) can 

### workforthe petitioner, butonly asdetailed in the petition and forthe 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 tofill and had a correspondingly lower annual 

### salary of$50,000. OSPI formally offered the position to Ngugi on December 16,
2009. 

### Although Ngugi did notimmediately accept thisoffer, OSPI spent a 

### significant amount oftime andeffort 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 ofH-1 Bvisas that thefederal 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 totransfer herexisting visa from the Institute to OSPI, and she could have worked for OSPI as soon as the transfer application

10-No. 72838-5-1/11 had been filed byOSPI.9 Due to this complication, though, OSPI could not 

### employ Ngugi in the newposition 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 haveled to herdeportation, Lieb agreed toextend the effective date ofNgugi's discharge to January 8, 2010. In the end, however, Ngugi turned down the OSPI position. 

### Ngugi's employmentwith 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 atOSPI. 

### Ngugi filed this lawsuit on January 27, 2012, bringing claims for race and national origin discrimination, hostile work environment, disparate treatment, 

### retaliation, negligent infliction ofemotional distress, tortious interferencewith business expectancy, and unpaid wages and willfully withheld wages. On 

### August 2, 2013, the trial court dismissed all ofNgugi's claims with prejudice on summaryjudgment. Ngugi now appeals the summary dismissal ofonly her race and national origin discrimination and retaliation claims. 

### In addition toits motion for summaryjudgment, the Institute10 alsofiled a motion to strike various materials submitted by Ngugi with her summary 

### 98 US C §1184(n) (1) ("Increased portability ofH-1B status[.]... Anonimmigrantalien 

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

### new employmentupon the filing bythe prospective employerofanew petition on behalfofsuch nonimmigrantasprovided undersubsection (a) ofthis section. Employmentauthorization shall continue for such alien until the new petition is adjudicated."). 10 Forease, we refertothe combined respondents/cross-appellants as the "Institute.

11No. 72838-5-1/12 

### judgment opposition pleadings. Thetrial 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 thetrial court improperly granted summary 

### judgment in favor ofthe Institute with respectto her disparate treatment claim. This is so, she asserts, because she presentedsufficient evidence that the Institute acted with a discriminatory purpose in taking adverse employment actions against her. We disagree. 

### Wereview a trial court's grant ofsummaryjudgment de novo. Camicia v. Howards. Wriaht Constr. Co., 179Wn.2d 684, 693, 317 P.3d 987 (2014). 

### Summaryjudgment is appropriate only when there is no genuine issue asto any material fact and the moving party is entitled tojudgment as a matter oflaw. CR 

## 56(c); Camicia, 179Wn.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., 112Wn.2d 216, 226, 770 P.2d 182 (1989). 

### UnderWashington's Law Against Discrimination (WLAD), it is an unfair 

## practicefor an employerto refuse to hire any person on the basis ofaprotected characteristic, including race and national origin. RCW 49.60.180. "Attrial, the 

### WLAD plaintiffmust ultimately prove that [the protected characteristic] was a

12No. 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. "[Sjummaryjudgment to an employer is seldom appropriate in the WLAD cases." Scrivener, 181 Wn.2d at 445. To overcome summaryjudgment, a plaintiffneeds to show only "that a reasonablejury 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, notpersuasion, and may be proved through direct orcircumstantial evidence." Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 149, 94 P.3d 930 (2004). 

### Where a WLAD plaintifflacks directevidence ofdiscrimination, 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 ofprooffor summaryjudgment.11 The recentWashington Supreme Court case Scrivener v. Clark College well-elucidates this analysis: Under the first prong of the McDonnell Douglas framework, a 

### plaintiffbears the initial burden ofestablishing 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 

### plaintiffestablishes a prima facie case, the burden ofproduction shifts to the employer to articulate a legitimate, nondiscriminatory
11 Because theWLAD is patterned afterTitle 7 ofthe Civil Rights Act of1964, 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).

-13-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 itcreates a genuine issue of material fact that the employer's articulated reason was a pretext for a discriminatorypurpose. 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 ispretextual or(2) thatalthough the employer's stated reason is legitimate, 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 thepretext burden of 

### production. Our case law clearly establishes that it is the plaintiff's burden attrial to prove thatdiscrimination 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 

### employmentdecisions and still beliable underthe WLAD. See id^ Scrivener. 181 Wn.2d at 446-47. 

### "Iftheplaintiffsatisfies the McDonnell Douglas burden ofproduction 

### requirements, the caseproceeds to trial, unless thejudge determines that no rational fact finder could conclude that the action was discriminatory." Scrivener,
181 Wn.2dat446.

14No. 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 ofhiring." 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 occurwithin a 

### shortperiod oftime, a strong inference arises that there was nodiscriminatory motive."). "For a plaintiffto prevail under such circumstances, the evidence must
answer an obvious question: ifthe employer is opposed to employing persons 

### with a certainattribute, 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 plaintiffmust 

### show that(1) he or she belongs to a protected class, (2) he or she was treated less favorably in the terms orconditions of heremployment than a similarly situated, nonprotected employee, and (3) he or she and the nonprotected 

### "comparator" were doing substantially similarwork.12 Washington v. Boeing Co., 105 Wn. App. 1, 13, 19 P.3d 1041 (2000). "The burden of establishing a prima facie case ofdisparate 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 ofCmtv. 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, ormentoring, she was 

### given fewer assignments than others, shewas not invited tostaffmeetings, her relationships with otherresearchers were discouraged, and she was eventually terminated from herposition. Ngugi established a prima facie case ofdisparate

treatment. 

### Thus, the burden ofproduction 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, afterwork on theBasic Education Finance Task Force ended, she was given fewer assignments is entirely 

### consistent with evidence presentedby the Institute that, at about thattime, it became clear that the Institute would receive less funding and fewer assignments

16No. 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 Millerto reach out to Ngugi and support her in hertransition to the 

### position at OSPI. Astowhy Ngugi wasterminated, the Institute presented evidence that Ngugi was at risk ofbeing 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, duetocomplications related toNgugi's immigration status, theOSPI arrangementfell through, and that only then was Ngugi let go. 

### Finally, the Institute presented significant evidence ofnondiscriminatory conducttoward Ngugi, including: (1) hiring her, (2) twice raising hersalary, (3) 

### sponsoring herfor permanent residency, (4) spending over $ 20,000 onattorney 

### 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 hermore comfortable, (8) urging the

17-No. 72838-5-1/18 legislature to include in its budget a proviso for a project that would allowthe 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 

### was subjected to the adverseemployment actions detailed above, Ngugi offers the comments Lieb made to her during their July 16, 2009 meeting as evidence 

### ofpretext. Specifically, as to Lieb's comment about Ngugi's "big eyes," Ngugi asserts that, "such a portrayal offrightened black peoplewith 'wide eyes' is consistentwith the historic portrayal ofblacks' 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 ofLieb 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


### ornational origin was a significant factor motivating that action. Moreover, because this claim is subject to the same actor inference, she must suggest an

18-No. 72838-5-1/19

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 verylittle evidence suggesting pretext and she does 

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

### reasonablejury could find for Ngugi on thisevidence. 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 herdiscrimination 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 aclaim for retaliation.13 HE 144Wn.2d at 180.

13 Forthe first time on appeal, Ngugi suggests that her retaliation claim is based not only oncircumstantial evidence, butalso ondirect evidence. Addressing this issue would require conducting adifferent 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. Wedecline to address this issue. RAP 2.5(a); RAP 9.12.
-19-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 ofretaliation, a plaintiffmust show that (1) he or she engaged instatutorily 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. ofWash., 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 arereasonably 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. ofSeattle, 118 Wn.2d 79, 95-96, 821 P.2d 34 (1991). However, the plaintiffmust show that retaliation was atleast a "substantial factor" in the employer's decision to take adverse action. Allison,
118Wn.2dat95. 

### Ngugi makes out a prima facie caseofdiscrimination. The record establishes thatNgugi began theprocess offiling a formal discrimination 14We have previously explained why the inference does not apply to retaliations claims. [W]ithoutthe inference in discrimination cases, "employers could be discouraged from hiring thevery personsthe Legislature intended the Law Against Discrimination toprotect, fearful that doing sowould make them more vulnerable, rather than less, tolegal claims ofunlawful discriminatory animus iflegitimate business reasons later required discharging such a person." [HiM, 144Wn.2d] at 190 n.13. Similar policy concerns arenot present [in theretaliation context]. Refusing to adoptthe same actor inference in retaliation claims would not make theemployer more vulnerable tosuch claims. Rather, adopting this inference would allow anemployertogrant a raise orpromotion priortoimplementing a termination as a means ofdecreasingtheir exposure to a valid retaliation claim. Lodis v. Corbis Holdings. Inc., 172 Wn. App. 835, 853, 292 P.3d 779 (2013).
-20-No. 72838-5-1/21 complaint with Evergreen on October 29, 2009. Additionally, it is undisputed that Institute staffwas made aware of this complaint within days and that, soon thereafter, Ngugi was terminated.15 

### Ngugi also alleges that a contract guaranteeing heremployment at OSPI 

### through June 2010 was destroyed in retaliation for herdiscrimination complaint. However, Ngugi proffers noevidence ofthis contract. It is true that the Institute 

### intercepted the PAF and prevented itfrom taking effect but, as theonly effect of this action was to prevent Ngugi's payfrom being cut, this cannotconstitute an 

### adverseemployment action. Ngugi's retaliation claim cannot rest on the mere 

### allegations that another contractexisted, thatthe purported contractguaranteed Ngugi's employment atOSPI for afixed 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 December2009, after months ofwarning that her employmentwas atrisk, because theInstitute

issee Kahn v. Salerno. 90Wn. App. 110,131, 951 P.2d 321 (1998) ("[l]ftheemployee establishes that heorshe participated in anopposition activity, theemployer knew ofthe 

### opposition activity, and he or she was discharged, then arebuttable presumption is created in favor of the employee that precludes usfrom dismissing the employee's case."). 

### 16 Ngugi also asserts that she was removed asthe primary authoron 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 October7, 2009, Ngugi was told that she would no longerwork on the housing project and that Miller alone would complete the 

### analysis and writing and presentthe paperto the legislature. Moreover, shortly before that, Ngugi had been informed that significantwork still needed to bedone on the project. While Ngugi may 

### have been genuinely surprised to find that she was notthe paper's lead author, there can be no 

### question thatthis eventuality was setin motion weeks before Ngugi made herdiscrimination complaint.
-21

-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 terminationdate to avoid jeopardizing her immigration status. Thus, the burden shifts back to Ngugi to present evidence of pretext. The 

### only additional evidence ofpretext Ngugi offers isthat, on December 22, 2009, the annual cap on H-1 Bvisas that the federal governmentcould award that year


### was reached. Ngugi allegesthat, from this fact, there is an inference that her termination was timed to sabotage her immigration status bymaking 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 evidencebut, rather, is pure speculation.18 Moreover,

17 The existenceof thisimmigration circumstance is reinforced by the Declaration ofBart Stroupe, animmigration law expert offered by Ngugi. ("The evidence suggests thatWSIPP was not aware initially thattheassignment ofMs. Ngugi toOSPI was in violation ofherH-1 Bstatus. This is indicated in the WSIPP's e-mail forwarded to Nicole Ack on October 28, 2009, in which WSIPPconfirmed 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 thatexists 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 oropinion. 35 C.J.S. Fact489 (1960). The"facts" required by CR 56(e) to defeata summaryjudgment motion are evidentiary in nature. Ultimate facts orconclusions offact are insufficient. See Hatch v. Bush. 215 Cal. App. 2d692, 30Cal. Rptr. 397 (1963). Likewise, conclusory statements offact

-22-No. 72838-5-1/23 there is overwhelming evidence in the record that Liebwas 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 reasonablejurycouldfind 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 toengage in the sameinquiry as thetrial 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 toeffectuate therule that the appellate court engagesin the same inquiry as thetrial court.'" (quoting Wash. Fed'n ofState Emos. v. Office ofFin. Mgmt., 121 Wn.2d 152, 157, 849 

### P.2d 1201 (1993))). Moreover, "'[principles of judicial 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. ofEnumclaw 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)). Forthese reasons, 

### because theforegoing analysis effectively disposes ofthis case, wedecline to
will notsuffice. American Linen Supply Co. v. Nursing Home BIdg. Corp., 15Wn. App. 757, 767, 551 P.2d 1038 (1976).").
-23-No. 72838-5-1/24
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 summaryjudgment 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 inthe 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).

-24No. 72838-5-1/25
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 inthe 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 itrequests.
V The Institute filed with this court a lengthy motion to strike portions of 

### Ngugi's appellate briefs. We have previously made clear ourview of such
motions: 

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