IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE MERCEDES PEREZ-MELGOSA, PhD, an individual, Appellant,

STATE OF WASHINGTON, Respondent. No. 73627-2-1

UNPUBLISHED OPINION



### FILED: August 15, 2016 Schindler, J. — Mercedes Perez-Melgosa, PhD filed a lawsuit againstthe 

### University ofWashington (UW) underthe Washington LawAgainst Discrimination, chapter49.60 RCW. Dr. Perez-Melgosa alleged wage discrimination, retaliation, disparate treatment, and hostile work environment. The courtdismissed the wage discrimination and retaliation claims on summaryjudgmentbut denied dismissal ofthe 

### disparate treatment and hostile workenvironment claims. A juryreturned a verdict in favor ofthe UW on the disparate treatment and hostile work environment claims. On 

### appeal, Dr. Perez-Melgosa challenges summaryjudgmentdismissal of her wage discrimination claim.1 We affirm summaryjudgmentdismissal ofthe wage discrimination claim.

Dr. Perez-Melgosa does not appeal summaryjudgmentdismissal of her retaliation claim.No. 73627-2-1/2

FACTS Mercedes Perez-Melgosa is ofSpanish national origin. She has a PhD in molecular biology from the Universidad Autonoma de Madrid, Spain. Dr. PerezMelgosa describes her accent as "thick Castilian." In 1994, Dr. Perez-Melgosa began a postdoctoral fellowship in immunology with Dr. ChristopherWilson at the University ofWashington (UW). In 2001, Dr. PerezMelgosa was appointed as a research scientist and worked on the "Smallpox Vaccine Myocarditis Study" (the Smallpox Project) in Dr. Wilson's lab. The Smallpox Project

was funded by the Multicenter National Institutes of Health and the United States Department ofDefense. JeffFurlong worked in Dr. Wilson's lab on information technology for the Smallpox Project. In 2009, Dr. Wilson decided to retire. Dr. Wilson asked UW Genome Sciences Professor Deborah Nickerson, PhD to assume responsibility for the Smallpox Project. Dr. Nickerson was the head ofthe UW Department ofGenome Sciences lab. Dr. Nickerson administered approximately $30 million in annual contracts and grants. 

### Approximately40 people worked inDr. Nickerson's lab on projects related to DNA2 sequencing and analysis. After meeting with Dr. Perez-Melgosa and Furlong, Dr. Nickerson agreed to
assume responsibility forthe Smallpox Project. Dr. Perez-Melgosa and Furlong were the only employees in Dr. Nickerson's lab who worked on the Smallpox Project. Lab employees worked in one ofthree different categories: (1) lab employees with managerial duties, such as "leads;" (2) bioinformatics or computer analysts who did

2Deoxyribonucleic acid.No. 73627-2-1/3 computer programming and analysis; and (3) noncomputational scientists who performed tasks such as organizing samples, ordering supplies, and running assays. Dr. Perez-Melgosa worked in Dr. Nickerson's lab as a "Research Scientist Engineer 3" (RSE-3) noncomputational scientist. From January 1, 2010 until November 1, 2012, Dr. Perez-Melgosa was the twelfth highest paid employee in Dr. Nickerson's lab and was the highest paid noncomputational scientist. Dr. Perez-Melgosa was the research scientist and coordinatorfor the Smallpox Project. Because the Smallpox Projectwas unlike any other project in Dr. Nickerson's lab, Dr. Perez-Melgosa reported directly to Dr. Nickerson instead ofreporting to one of the lab managers. Dr. Nickerson was a demanding supervisorwho imposed high performance standards on employees. Dr. Nickerson had littletolerance for lack ofattention to detail, soundjudgment, or accountability. When an employee did not meet performance expectations, Dr. Nickerson would often getfrustrated and yell atthe employee. No one inthe lab was exemptfrom Dr. Nickerson's outbursts. There is no dispute the outbursts and yelling were always related to work performance and never personal. Catherine Igartua, an employee in Dr. Nickerson's lab who is also from Spain, described Dr. Nickerson's management style as "honest and direct." Igartua said that while Dr. Nickerson could be quick to criticize work performance, Dr. Nickerson never said anything offensive to anyone. Dr. Nickerson admitted that she yells at employees when they fail to perform their jobs to her satisfaction and that she yelled at Dr. Perez-Melgosa about poor recordkeeping.No. 73627-2-1/4 The Washington legislature imposed a statewide salary freeze beginning February 2009 and lasting untilJune 2013. While the salary freeze was ineffect, salary increases were allowed only if (1) the employer showed difficulty retaining critical and qualified employees, (2) an existing position was reclassified to a higher salary grade or a different job category for functioning at a higher level or performingjob duties different from those expected forthe currentjob category, or (3) the employee obtained a promotion through the competitivejob application process. Atsome point in2010, Dr. Perez-Melgosa asked Dr. Nickerson for a raise and promotion to RSE-4. Dr. Nickerson denied the request. Dr. Nickerson told Dr. Perez

### Melgosa there was a "[fjreeze on raises in the State ofWashington" and "even [Dr. Nickerson] had not received a raise." During the four years the salary freeze was in effect, some lab employees received a salary increase. For example, a lab manager recommended RSE-2 Mallory 

### Beightol receive a raise effective February 1, 2012 inorderto retain and prevent her from leaving for a higher-paying position. And RSE-2 Christian Frazar received a raise effective November 1, 2012 in an effort to retain him. Beginning inspring 2012, Dr. Nickerson began having concerns aboutthe 

### progress of the Smallpox Project and the quality ofDr. Perez-Melgosa's work. The 

### most significant and ongoing concern related to Dr. Perez-Melgosa "changing" the results of a quality control (QC) test without authorization. The QC team in Dr. Nickerson's lab was solely responsible for conducting and interpreting QC test results. 

### Dr. Perez-Melgosa did not notify QC or anyone else in the lab that she had changed the test results. InDr. Nickerson's opinion, changing the results ofthe QC test was "aNo. 73627-2-1/5 

### serious overstep of[Dr. Perez-Melgosa's] duties and responsibilities in the Lab and demonstrated exceedingly poorjudgment." Dr. Nickerson decided she could no longer trust workperformed by Dr. Perez-Melgosa. Dr. Nickerson directed other lab employees to analyze and redo Dr. Perez-Melgosa's most recentwork. The UWterminated Dr. Perez-Melgosa's employment effective November 19, 2012. The reasons for termination were "an absence ofjudgment inchanging research 

### data and lack of authority to change the data results withoutseeking properclarification fromcolleagues and the lab manager." Dr. Perez-Melgosa submitted a rebuttal to the
reasons forterminating her employment. Human Resources concluded Dr. PerezMelgosa failed to identify any factual errors related to the basis for her dismissal. Dr. Perez-Melgosa filed a lawsuit againstthe UW alleging disparate treatment, hostile workenvironment, wage discrimination, and retaliation in violation of the 

### Washington Law Against Discrimination(WLAD), chapter49.60 RCW. The UW filed a motion forsummaryjudgmentdismissal of the lawsuit. The court dismissed the retaliation and wage discrimination claims. The court denied summary 

### judgment dismissal of the disparate treatment and hostile work environment claims. After a nine-day trial, the jury returned a verdict in favor of the UW on the disparate

treatment and hostile work environment claims. ANALYSIS 

### Dr. Perez-Melgosa appeals summaryjudgmentdismissal of her wage discrimination claim. We review summaryjudgmentde novo, engaging inthe same 

### inquiry as the trial court. Neigh. All, of Spokane County v. Spokane County, 172Wn.2d 702,715,261 P.3d 119(2011). Summaryjudgmentis appropriate when there is noNo. 73627-2-1/6 

### genuine issue of material fact and the moving party is entitled tojudgment as a matter of law. CR 56(c). We view allfacts and reasonable inferences in the lightmost favorable to the nonmoving party. Young v. KeyPharm., Inc., 112 Wn.2d 216, 226, 770 P.2d 182(1989). 

### Adefendant moving forsummaryjudgmenthas the initial burden to showthe 

### absence ofgenuine issues of material fact. Young, 112Wn.2d at 225. Ifthe defendant makes this initial showing, the burden shifts to the plaintiffto setforth specific evidence 

### establishing a genuine issue of material fact. Young, 112Wn.2d at 225 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). 

### The plaintiffcannot meet its burden by relying on speculation or "mere 

### allegations, denials,opinions, orconclusory statements" to establish a genuine issue of material fact. Int'l Ultimate. Inc. v. St. Paul Fire &Marine Ins. Co., 122 Wn. App. 736, 

### 744, 87 P.3d 774 (2004) (citing CR 56(e); Grimwood v. Univ. ofPuoet Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988)). While we construe allevidence and reasonable 

### inferences in the light most favorable to the nonmoving party,ifthe plaintifffails to make a showingsufficientto establish the existence of a material issue of fact, summary judgment is proper. Young, 112 Wn.2d at 225. 

### As a preliminary matter, we note that throughout herbrief, Dr. Perez-Melgosa 

### repeatedly cites totrial testimony andtrial exhibits to argue the courterredin dismissing the wage discrimination claim on summary judgment. The UW also cites to the trial record. Under RAP 9.12, we consider only evidence thatwas before the court on 

### summary judgment and disregard the citations to evidence presented attrial. Taliesen Corp. v. Razore Land Co., 135 Wn. App. 106, 129, 144 P.3d 1185(2006).No. 73627-2-1/7 

### Because the WLAD is patterned after TitleVII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e-2, Washington courts rely on federal law and decisions 

### interpreting TitleVII. See, ag,, Oliver v. Pac. Nw. Bell Tel. Co., 106 Wn.2d 675, 678, 724P.2d 1003 (1986): Tafova v. Human Rights Comm'n, 177 Wn. App. 216, 224, 311 P.3d70(2013). Where, as here, the plaintifflacks direct evidence ofdiscrimination, the 

### McDonnellDouglas burden-shifting analysis applies to the order and nature of proof on 

### summary judgment. Scrivenerv. Clark College, 181 Wn.2d 439, 445, 334 P.3d 541 (2014) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L Ed. 2d 668 (1973)). Under McDonnell Douglas, the plaintiffhas the initial burden ofestablishing a 

### prima facie case of discrimination that creates a presumption of discrimination. Scrivener, 181 Wn.2d at 446. Ifthe plaintiffestablishes a prima facie case, the burden 

### of production shifts to the employerto articulate a legitimate, nondiscriminatory reason 

### for the adverse employment action. Scrivener, 181 Wn.2d at 446. The plaintiffmust then produce evidence that "creates a genuine issue of material fact that the employer's articulated reason was a pretext for a discriminatory purpose." Scrivener, 181 Wn.2d at 

### 446. Ifthe plaintifffails to meetthe burden of production requirements, the defendant is 

### entitled to judgment as a matter oflaw. Hill v. BCTI IncomeFund-I, 144 Wn.2d 172, 182, 23 P.3d 440 (2001). 

### Toestablish a prima facie case ofdisparate treatment based on nationalorigin, 

### Dr. Perez-Melgosa must show (1)she belongs to a protected class; (2)she was treated less favorably in the terms and conditions of her employment than a similarly situatedNo. 73627-2-1/8 

### nonprotected employee, or "comparator," and (3) she and the nonprotected comparator were doing substantially similar work. Domingo v. Boeing Emps.' Credit Union. 124Wn. App. 71, 81, 98 P.3d 1222 (2004). Although a plaintiff's prima facie burden at the 

### summaryjudgment stage is notonerous, Dr. Perez-Melgosa has not met that burden. See Texas Dep't of Cmtv. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). 

### Under federal employmentdiscrimination law, employees are similarly situated if 

### they are directlycomparable orsimilarly situated in all material respects. Raymond v. Ameritech Corp., 442 F.3d 600, 610 (7th Cir. 2006); Moran v. Selig. 447 F.3d 748, 755 

### (9th Cir. 2006). The plaintiffmust be similarly situated in allrelevant aspects and nearly identical to the employees who are allegedly treated more favorably. Pierce v. Commonwealth LifeIns. Co., 40 F.3d 796, 802 (6th Cir. 1994). The purpose ofthe 

### "similarly situated" requirement is "to eliminate other possible explanatory variables" such as differing roles, performance history, or decision-making personnel that help isolate the criticalindependentvariable—"discriminatory animus." Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012). 

### Factors relevantto determining whether employees are comparableforpurposes 

### of a wage discrimination claim include whether the employees had the samejob description, were subjectto the same standards, were subordinate to the same 

### supervisor, and had comparable experience, education, and other qualifications. Bagwe v. Sedgwick Claims Mqmt. Servs.. Inc., 811 F.3d 866, 885 (7th Cir. 2016); Aiavi

v. Aramark Bus. Servs.. Inc., 336 F.3d 520, 532 (7th Cir. 2003); Marin v. King County, No. 72666-8-I, 2016 WL4041860, at *5 (Wash. Ct. App. June 6, 2016).No. 73627-2-1/9 Dr. Perez-Melgosa presented no evidence that Dr. Nickerson denied her request for a promotion and a raise because of her national origin orthat she was treated differently than similarly situated employees or comparators. Dr. Perez-Melgosa presented no evidence ofcomparability to any otheremployee in Dr. Nickerson's lab such as experience, job descriptions, education, and otherqualifications. Dr. PerezMelgosa cannot establish a prima facie case ofwage discrimination by simply producing

a chart comparing her salary withthat ofanother employee with the samejob title. Bagwe. 811 F.3d at 884-85. To the extentthat Dr. Perez-Melgosa is arguing lab employees Cynthia Shephard, Colleen Davis, and Jessica Pijoan are comparators, her argumentfails. It is undisputed there were three categories ofemployees inthe lab and employees ineach 

### category were paid according to different salary schedules. It is undisputed that Dr. Perez-Melgosa was classified as an RSE-3, the noncomputational scientist category. However, according to the chart Dr. Perez-Melgosa submitted inopposition to summary 

### judgment, both Pijoan and Shephard were RSE-2s and Davis was a "Research Coordinator" and "Program Operations Specialist." Even if Dr. Perez-Melgosa had made a prima facie showing ofdisparate treatment, she fails to show that Dr. Nickerson's reasons to deny her requestfor a promotion and raise are pretextual. A plaintiff may showthe defendant's legitimate 

### nondiscriminatory reasons are pretextual by showing the reasons (1) had no basis in fact, (2) were not really motivating factors for its decision, (3) were not temporally connected to the adverse employment action, or (4) were not motivating factors in 

### employmentdecisions forotheremployees in the same circumstances. Scrivener, 181No. 73627-2-1/10 Wn.2d at 447. The plaintiff may also satisfy the pretext prong by "presenting sufficient evidence that discrimination nevertheless was a substantial factor motivating the employer." Scrivener. 181 Wn.2d at 448. There is no evidence thatthe reason to deny her requestfor a salary increase

was either pretextual or a substantial motivating factor. The stated reason for denying Dr. Perez-Melgosa's requestfor a salary increase in 2010 was the statewide wage freeze ineffect at the time. Below, Dr. Perez-Melgosa argued the statewide wage freeze was pretextual because all the otheremployees in Dr. Nickerson's lab received promotions or retention increases as a means ofcircumventing the wage freeze. Dr. Perez-Melgosa relied on a chartthat purported to show salary increases and promotions for all employees in Dr. Nickerson's lab. Butthe undisputed testimony of UWDepartment ofGenome Sciences Director Nancy Cameron establishes the chartwas misleading and did not support Dr. PerezMelgosa's argument. The chart (1) omits 15 employees who did not receive salary increases, most ofwhom were noncomputational employees like Dr. Perez-Melgosa; (2) includes salary raises that were given after Dr. Perez-Melgosa was no longer an 

### employee ofthe lab; (3) includes raise information for an employee who was paid on a pay scale applicable to faculty members, notthe pay scale applicable to Dr. Perez

### Melgosa; (4) lists personnel action taken in2011 for an employee who did not start working inDr. Nickerson's lab until 2012; and (5) lists salary information for an individual who was not hired until after Dr. Perez-Melgosaleftthe lab. The chart also incorrectly shows Furlong received a 2.2 percent salary increase when in actuality his salary remained unchanged from his start date. The chart shows Dr. Perez-Melgosa was the

10No. 73627-2-1/11 highest paid noncomputational scientist inthe lab and was paid more—in some instances substantially more—than 7 other lab employees classified as RSE-3s. At oral argument, Dr. Perez-Melgosa's attorney conceded that not all ofthe employees in Dr. Nickerson's lab received a salary increase while the wage freeze was in effect. Dr. Perez-Melgosa points to the salary increases given to lab employees Shephard, Davis, and Pijoan during the wage freeze as evidence ofpretext. The record shows the UWgave Shephard a raise in an effort to discourage herfrom looking for a higher-paid position inthe private sector. And as a lead in Dr. Nickerson's lab, Davis received salary increases as a reflection of the critical role she played inoverseeing the administrative aspects ofthe lab. The record shows Pijoan received a subpar score on a performance evaluation because ofcontaminated samples. Butthe samples were contaminated primarily 

### because plate seals failed ratherthan any deficiency inPijoan's workperformance. And contrary to Dr. Perez-Melgosa's assertion, the record shows Pijoan received a raise not for retention purposes but rather as a reflection of her "ongoing responsibilities and contributions" to the Department of Genome Sciences. 

### There is no dispute Dr. Perez-Melgosa never stated an intent to leave her job for 

### a higher-paying position elsewhere. There is also no dispute Dr. Perez-Melgosa did not
assume any additional work or responsibilities but rather asked for a raise for doing the

same work she had always done inthe lab. Nor is there any evidence that Dr. Perez-Melgosa's national originwas a substantial motivating factor inthe decision to deny her requestfor a raise or had

11No. 73627-2-1/12 

### anything to do with the decision to deny her requestfor a raise. While working in the lab, Dr. Perez-Melgosa never reported that Dr. Nickerson discriminated against her because of her national origin. Dr. Perez-Melgosa testified Dr. Nickerson never said anything to her about her national origin or her accentthat she considered to be derogatory. 

### We affirm summary judgment dismissal of the wage discrimination claim.3

WE CONCUR: 

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3Accordingly, we need notaddress the assignments of error to the evidentiary rulings PerezMelgosa argues "should be corrected for remand."

12