IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON HOLSEY SATTERWHITE, Individually, Appellant,

v. STATE OF WASHINGTON, UNIVERSITY OF WASHINGTON, Respondent. No. 68763-8-1 DIVISION ONE

UNPUBLISHED OPINION

FILED: October 28, 2013 o
Schindler, J. — Holsey Satterwhite and his attorney Thaddeus P. Martin appeal the award ofattorney fees and costs inthe amount of$78,968.25 to the University of Washington under CR 11 and RCW4.84.185. We reverse and remand. FACTS Zynovia Hetherington is the Director ofthe Children's Welfare Teaching Assistance Program (CWTAP), a specialized three-year master's in social work degree 

### at theUniversity ofWashington (UW).1 Hetherington manages theprogram and supervises "Teaching Associates, also known as Practicum Instructors and Field Instructors." Teaching Associates instruct, train, and supervise the CWTAP graduate students.

1Hetherington isAfrican American.No. 68763-8-1/2 Holsey Satterwhite applied for a Teaching Associate position in May 2008. Satterwhite is an African American man with a master's degree in social work. Hetherington and several others interviewed Satterwhite and recommended hiring him for the position. InAugust, Dr. Margaret Spearmon, the Associate Dean ofthe School of Social Work, and the Dean ofthe School of Social Work, Edwina Uehara, appointed 

### Satterwhiteto theTeaching Associate position forthe 2008 to 2009academicyear.2 Four ofthe Teaching Associates worked at the Seattle campus. Each Teaching Associate supervised between 6 and 15 CWTAP graduate students. Satterwhite was the only male instructor inthe CWTAP. Satterwhite and Teaching Associate Tammy Inselman worked at the Tacoma campus. Satterwhite and Inselman conducted combined monthly or bi-monthly training sessions together. In November 2009, Inselman told Hetherington that one of her students, Tiffany McRae, had expressed concerns about Satterwhite. Inselman said McRae said Satterwhite had asked her out on dates and "complained that the requests made her uncomfortable." Inselman also told Hetherington that during a joint training session, "Mr. Satterwhite used Ms. McRae as an example and, indoing so, he touched her
shoulder." 

### On November24, Hetherington metwith McRae and Inselman. McRae told Hetherington that Satterwhite invited her to go to a church banquet at Fort Lewis and asked her ifshe wanted to go to the movies. McRae said that she wanted to attend the church event "to network inthe community, particularly around people of-color issues and so this event seemed the perfectopportunity to do justthat." Butthe request that

Associate Dean Spearmon is African American and Dean Uehara is Japanese American.No. 68763-8-1/3 McRae wear a dress to the event made her "uncomfortable." McRae testified, in pertinent part:InAugust 2009, Istopped by Holsey's office to ask him aboutthe old OASIS program for African-American children. We started chatting and I told him I lived in Eatonville and he told me he lived in Graham and suggested we do something sometime as we lived near each other. He then invited me to go with him to a banquet at Ft. Lewis that was related to some of his church activities. Iwork for the Pierce County AIDS Foundation and one of my tasks is to network inthe community, particularly around people of-color issues and so this event seemed the perfect opportunity to do justthat. 1did not perceive any problem with attending this event with Holsey. Itold him of my professional interests and so Itook our going to the banquet as a professional event; Ialso assumed he knew where I worked. What made me uncomfortable about going with Holsey to this event was his mentioning to me that Ishould wear a dress. He explained that the banquet was a formal affair and so he wanted me to wear a dress. A couple ofweeks later, Irealized that I would have to work the day ofthe banquet and texted him a message (we had exchanged phone numbers) telling him Icould not make it. 

### McRae also described the training session where Satterwhite used her "in an 

### examplefor a social workcase and pointed his finger into myshoulderto make a point." McRae said she did not "mind him using me in his example" but "did not likebeing
touched." 

### On November25, Hetherington and Associate Dean Spearmon metwith Satterwhite. Satterwhite said that after a discussion with McRae about race, he invited 

### her to go to a church event. Satterwhite said that he told McRae she should wear a dress to the church event because "[ijt's a traditional black church. [T]he guys wear black suits ortuxedos and the women wear black dresses." Satterwhite testified, in pertinent part: [McRae] came up to me and shejust struck up a conversation.And what she said, she was like -- because we were talking 

### about something, thatthere was race in the context of black and white,No. 68763-8-1/4 and that's when she brought it up. She said, Ilive in Eatonville and there isn't a lot ofblack people that live up there. Isaid, Ilive in Graham. Isaid, There's not a lot of black people over there either. She was asking, Well, what do you do? Isaid, Well, Ihave my church, Ihave several organizations I belong to, that, you know, Iknow other blacks. And so she --1 told herthen, Isaid

- my pastor and his 

### wife's anniversary is coming up. Isaid, You are welcome to go if you want, Ican get you a ticket. Isaid, And you can go. Isaid, Iwill introduce you to other people there. Isaid, It's a traditional black church, just so you know, so that means that men wear their black suits and women their black dresses. She said she had a son, who Ithink was seven years old. Itold her, Isaid, Well, my lady friend, the lady Iwas seeing at the time, Isaid, She has a son about the same age. Isaid, I'll introduce you to her, you guys can talk. Isaid, She can probably take you around, if you would like, and introduce you. Isaid, Myfraternity, we have outings, family outings every year. Isaid, the Masonics that Ibelong to --1 said, So Ican at least get you there and introduce you and you can take it from there. She was like, Oh, okay, okay, okay. I'm like, You can go from there. Isaid, That willhelp you out. She goes, Okay. I do remember that conversation. Q What did she say inresponse? A She said, Okay, that would be nice. Q Okay. She didn't seem uncomfortable with it at all? A No, absolutely not. Satterwhite denied asking McRae on a date but admitted touching her on the shoulder during a training exercise. Satterwhite testified, in pertinent part: I'm like, How was that asking her on a date? Because Itold her, When I was telling her specifically about the banquet, Isaid I'll introduce you to my lady friend, and you can meet her and y'all can talk. I'll introduce you to as many black people as you want to and you can go from there. Ifailed to see that Iwas asking her on any type ofdate, ifyou want to add the caveat of itbeing any type ofromantic-type situation. Iwas explaining that to her.No. 68763-8-1/5 

### Satterwhite said that he invited McRae to attend the banquetto help her network. Satterwhite expressed his concern that Hetherington and Associate Dean Spearmon
were using a double standard. No one says anything when the females, you know, go outto eat and socialize after class and stufflike that. Why is itdifferent for me? And I never got a response. And so I'm like, that's a -- that's a double standard. That

-- that makes it look like, oh, well, this man is coming on. I'm not coming on to her. Ihad no intention, nor do Ihave now, or any type ofromantic stuff with this woman. Why is there a double standard, that ifIdo the same thing that Iseen them, including my director do, then why is it a problem, but itwasn't a problem for them? Associate Dean Spearmon told Satterwhite that she planned to meetwith McRae and that he "could have the University-wide ombudsman
... if [he] wanted to. But [Associate Dean Spearmon] said, [she would] rather ifwe handled this here with us." Satterwhite also testified that Associate Dean Spearmon assured him that "[t]his is low level. . . . We'll get this settled as quick" as possible. [Associate Dean Spearmon] said

- yeah, she said something like -- because I'm like, Well, what does this mean? And she said, Well, urn, urn, urn, you're okay, you won't, you know, lose yourjob. She says, I've seen cases much worse than this, she says, So you'll be okay. She said, This is low level. She said, This is low level. In late November, Associate Dean Spearmon, Director Hetherington, and CWTAP Associate Director Carol Donaldson met with McRae. McRae said that she did not wantto see Satterwhite again and "feltsexually harassed." After the meeting, Associate Dean Spearmon and Dean Uehara concluded that McRae had alleged Satterwhite violated UWpolicies, "including those prohibiting sexual harassment." On December 8, Associate Dean Spearmon and Dean Uehara met with Satterwhite. Associate Dean Spearmon told Satterwhite that McRae complained thatNo. 68763-8-1/6 "he had asked Ms. McRae at attend a formal social gathering at which she was to wear
a dress," touched her shoulder during training, and "inquired into herpersonal life." Associate Dean Spearmon explained that underthe Faculty Code, the options were "initiation ofproceedings with the University's Ombudsman's Office, investigation ofthe allegations by the University Complaint and Resolution Office (UCIRO), or an agreed resolution." According to Associate Dean Spearmon, Satterwhite "did not want a formal investigation or to involve the University Ombudsman's Office, but that he instead wanted to try and resolve the matter directly." After the meeting, Associate Dean Spearmon and Dean Uehara asked Hetherington "to look into other CWTAP duties Mr. Satterwhite could perform through the end of his appointment (June 30, 2010) where he would not have any more one-onone contact with students, including Ms. McRae." On December 17, Associate Dean Spearmon sent Satterwhite a letterdescribing 

### the agreementto modify his appointmentand reduce his position to 80 percent. The letter states, in pertinent part: 

### [T]his letter is to confirm our mutual agreement regarding modifications to 

### your current appointmentas a Teaching Associate with the University of Washington School of Social Work. As you and Idiscussed, most recently on December 15, 2009, these modifications willtake effect on January 4, 

### 2010. It is agreed and understood that your appointmentwith the School ofSocial Work will end no laterthan June 30, 2010, subjectto satisfactory performance, and itwill not be renewed. 

### Associate Dean Spearmon requested Satterwhite sign the letter "to signify your 

### voluntary agreementwith all of the above terms." On January 28, 2010, Satterwhite signed and returned the letter.No. 68763-8-1/7 After Satterwhite's appointment ended in 2010, the CWTAP hired an African American woman to fill the Teaching Associate position. On January 31, 2011, Satterwhite filed a lawsuit against the UW alleging discrimination, hostile work environment, wrongful discharge, retaliation, negligent infliction ofemotional distress, negligent hiring, negligent retention, negligent supervision, intentional infliction of emotional distress, assault, and battery. Afterthe UW received responses to interrogatories and requests for production, the UW attorney sent an e-mail to Satterwhite's attorney Thaddeus P. Martin. The UW attorney asked Martin to dismiss the lawsuit because "this case is frivolous and advanced without reasonable cause." The e-mail pointed out that Satterwhite expressly 

### agreed to "modifications to his job and to the termination of his appointment," and his
race discrimination claim was "factually unsupportable." The UW attorney also noted that Satterwhite admitted "in his discovery responses that he did not engage in any 

### protected activity, that he was not assaulted orsubjectto battery by any University employee." The e-mail states that "should we need to depose the Plaintiff, Iintend to thereafterfile a motion forsummaryjudgment and seek recovery of the University'sfees
and costs." 

### Satterwhite agreed to dismiss the claims for intentional infliction of emotional distress, assault, and battery withprejudice. On May 17, the parties filed an agreed order ofdismissal ofthose claims. Satterwhite did not agree to dismiss the other claims.

### The UWdeposed Satterwhite. Satterwhite testified that he was discriminated 

### againstbased on race and gender. Satterwhite said, "I was a male in -- the only male,No. 68763-8-1/8 

### actually, in this female situation. Ihad brought those concerns to Ms. Hetherington on
numerous occasions." Satterwhite testified, "I would say, You guys can talk because you can relate, you can say things that Ican't relate to. Ican't be a part ofthe conversation, because ifIsay something, it might be construed that I'm being 

### inappropriate." Satterwhite also testified that at one training event, a coworker made an offensive racial comment about him. "We were at someplace over bythe UW
.... Who
was that that was saying, Well, you know how y'all black men are. Ididn't say anything But I took offense to that."

Satterwhite testified that Associate Dean Spearmon told him he would not lose his job and that "[t]his is low level." Satterwhite said thatwhen he received the letter, he tried to get intouch with Associate Dean Spearmon and Hetherington "to try to find out what was going on." Satterwhite testified that he "did not know that Iwas actually losing my job until Igot [the] letter" from Associate Dean Spearmon. Satterwhite also testified that he signed the agreement under duress. Q Ifyou are saying that you had not discussed these issues before receiving the letterwith [Associate Dean Spearmon] or [Hetherington], why would you sign the letter? A Ineeded a job, and itwas signed under duress. Ineeded a job. Idid not have ajob. During her deposition, Director Hetherington testified that she suggested transferring Satterwhite to the six-month nonrenewable position "[b]ecause Iwanted him to have a job." Hetherington said that the new position was based on McRae's allegations that "she felt sexually harassed" by Satterwhite. Associate Dean Spearmon testified that she had no issues with Satterwhite's performance as an instructor. Associate Dean Spearmon said that Satterwhite was

8No. 68763-8-1/9 removed from his position because McRae "reported feeling sexually harassed." The UW filed a motion for summaryjudgment dismissal ofthe discrimination, hostile work environment, retaliation, wrongful discharge, and negligence claims. The UW argued Satterwhite could not establish a prima facie case of race or gender discrimination because "there is no evidence that the University's legitimate reason for not renewing his appointment—inappropriate conduct with a University student—was a pretextfor discrimination." The UWalso argued there was no evidence Satterwhite was subjected to a hostile work environment. The UW submitted a number ofdeclarations in support of summaryjudgment, including the declaration of Director Hetherington, McRae, Associate Dean Spearmon, and Dean Uehara. In his response to the summaryjudgment motion, Satterwhite agreed to dismiss 

### the negligence claims but opposed dismissal of his discrimination and wrongful 

### discharge claims. Satterwhite asserted the evidence established a prima facie case of
race and gender discrimination, hostile work environment, and wrongful discharge. 

### Satterwhite submitted excerpts from his deposition and the depositions of Director Hetherington, Associate Dean Spearmon, and Dean Uehara. 

### The court granted the motion forsummaryjudgmentdismissal of the claims with prejudice. As to the discrimination claims, the court concluded Satterwhite did not present any evidence ofpretext. Inthe oral ruling,the court states, in pertinent part: Even ifthe prima facie case was made out by the plaintiff, which the Court believes itwas not done, there is no evidence that the university's actions 

### taken or explanations given, were pretextual. Itappears from the evidence thatthe university's acts were based upon legitimate considerations that were not motivated in any way by racial or gender discrimination.No. 68763-8-1/10 

### As to the hostile work environment claim, the court acknowledged Satterwhite presented evidence ofoffensive remarks but concluded "itcertainly didn't amountto what's required to constitute a hostile work environment." The court ruled that "considering all the evidence" presented at summary judgment, the claims "appearto be frivolous." On March 9, 2012, the court entered an 

### ordergranting the motion for summaryjudgmentand dismissing the lawsuit againstthe UW with prejudice. Approximately one month later, the UW filed a motion for an award of attorney fees and costs against Satterwhite and his attorney under CR 11 and RCW4.84.185. The UW requested all ofthe attorney fees and costs incurred from the date offiling the complaint through the date for the summaryjudgment motion, totaling $73,609 in attorney fees and $4,609.25 incosts. Exceptfor deducting $750 related to "excess and apparent duplication," the court awarded all ofthe attorney fees and costs requested by the UW under CR 11 and RCW 4.84.185. The court ordered Satterwhite and his attorney to pay a total of$78,968.25
as "the reasonable fees and costs incurred by the Defendant University ofWashington 

### in defending this suit."3

3The orderstates, in pertinentpart: The fees and costs are calculated as follows: Fees Through April 6, 2012

— $73,609.00 deduct some excess and apparent duplication

— 750.00 Subtotal $72,859.00 Costs 4.609.25 $77,468.25 Fees related to Defendant's Reply Memorandum re Attorneys' fees $1.500.00 Total Fees and Costs $78,968.25
10No. 68763-8-1/11 

### The court entered ajudgmentof$78,968.25 against Satterwhite and Martin 

### jointly and severally for "the sum of the reasonable number of hours expended by the University indefending againstthis frivolous action at reasonable hourlyrates, plus necessary costs."
ANALYSIS 

### Satterwhite and Martin contend the courterred inawarding attorney fees and costs under CR 11 and RCW4.84.185 and inentering thejudgmentfor $78,968.25. Satterwhite and Martin contend the court abused its discretion by failing to enter findings identifying the sanctionable conduct, and concluding the discrimination claims 

### lacked afactual orlegal basis and were advancedwithout reasonable cause.4 Satterwhite also contends the court did not limit the amount offees awarded to the amount reasonably expended in responding to sanctionable conduct under CR 11. CR 11 Sanctions The decision to impose sanctions under CR 11 is within the sound discretion of the trial court. State ex rel. Quick-Ruben v. Verharen, 136 Wn.2d 888, 903, 969 P.2d 64 (1998). A court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds. MacDonald v. Korum Ford, 80 Wn. App. 877, 884, 912 P.2d 1052 (1996). Applying the wrong legal standard is an abuse ofdiscretion. Mayer
v. Sto Indus.. Inc.. 156 Wn.2d 677, 684, 132 P.3d 115 (2006). "The purpose behind CR 11 is to deter baseless filings and curb abuses ofthe judicial system." Bryantv. Joseph Tree. Inc., 119 Wn.2d 210, 219, 829 P.2d 1099 (1992). "CR 11 is not meantto act as a fee shifting mechanism, but rather as a 4While Satterwhiteassigned errorto thetrial courtfindings thatalt ofSatterwhite's claimswere frivolous and brought without reasonable inquiry, Satterwhite addresses only the discrimination and wrongful discharge claims.
11No. 68763-8-1/12 deterrentto frivolous pleadings." Korum Ford. 80 Wn. App. at 891. Civil Rule 11 addresses two types ofproblems: (1) filings that are not grounded infact and warranted 

### bylaw and (2) filings interposed for an improperpurpose. Bryant, 119Wn.2d at217.5 Because CR 11 sanctions may have a chilling effect, the court should impose CR 11 sanctions "only when it is patently clearthat a claim has absolutely no chance of success." Skimming v. Boxer, 119 Wn. App. 748, 755, 82 P.3d 707 (2004). Preliminarily, Satterwhite and Martin assertthe courterred in failing to identify the sanctionable conduct. The record does not support their assertion. The record shows thatthecourtcomplied with the reguirements of Biggs v. Vail. 124 Wn.2d 193, 876 P.2d 448 (1994) (Biggs II), by identifying the sanctionable conduct by finding that the claims
were not grounded infact or law. In Biggs II. the Court held, in pertinent part: [l]n imposing CR 11 sanctions, it is incumbent upon the courtto specify the sanctionable conduct in its order. The court must make a finding that eitherthe claim is not grounded infact or law and the attorney or party failed to make a reasonable inquiry into the law or facts, or the paper was filed for an improper purpose. Biggs II. 124 Wn.2d at 201.

5CR 11(a)provides, in pertinentpart: Every pleading, motion, and legal memorandum of a party represented by an attorney shall be dated and signed
.... The signature of... an attorney constitutes a certificate by the . . . attorney that the party or attorney has read the pleading, motion, or legal memorandum, and thatto the best ofthe party's or attorney's knowledge, information, and belief, formed afteran inquiry reasonable under the circumstances: (1) it is well grounded in fact; (2) it is warranted by existing law or a good faith argumentfor the extension, modification, or reversal ofexisting law or the establishmentof new law; (3) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the costof litigation.
12No. 68763-8-1/13 

### Satterwhite and Martin contend the court abused its discretion in findingthe 

### discrimination claims were not groundedinfact and lawwhen the complaintwasfiled.6 We agree. Acourt may not impose CR 11 sanctions for filingbaseless claims unless it "finds thatthe attorney who signed and filed the complaintfailed to conduct a reasonable 

### inguirv into thefactual andlegal bases oftheclaim." Bryant, 119Wn.2d at220.7 In making that determination, we use an objective standard to determine whether "a reasonable attorney in like circumstances could believe his or her actions to be factually and legally justified." Bryant, 119 Wn.2d at 220. The court must also consider "the need for discovery to develop factual circumstances underlying a claim." Bryant. 119 

### Wn.2d at220-21.8 Courts should be "reluctantto impose sanctions . . . beforethere has been an opportunity for discovery" because the notice pleading rule "contemplates that discovery will provide parties withthe opportunity to learn more detailed information about the nature of a complaint." Bryant, 119Wn.2d at 222. The fact that a complaint "does not prevail on its merits is by no means dispositive ofthe question of CR 11 sanctions." Bryant. 119Wn.2d at 220. "To avoid being swayed by the benefit of hindsight, the trial court should impose sanctions only when it is 'patently clearthat a 

### claim has absolutely no chance ofsuccess.'" Korum Ford, 80 Wn. App. at 884 (quoting Oliveri v. Thompson. 803 F.2d 1265, 1275 (2nd Cir.1986)).

6The order states, in pertinentpart: 1. PlaintiffHolsey Satterwhite's claims in this case were not grounded in fact or law, are frivolous, and were advanced without reasonable cause under RCW 4.84.185; 2. Plaintiff's counsel Thaddeus Martin failed to make a reasonable inquiry into the law and facts withrespect to Plaintiffs claims in this case as required by CR 11. 

### 7(Emphasis in original.) 8(Citation omitted.)

13No. 68763-8-1/14 Inthe complaint, Satterwhite alleged race and gender discrimination in violation ofthe Washington LawAgainst Discrimination (WLAD), chapter49.60 RCW. A plaintiff may allege discrimination based on both race and gender. See e.g., Harris v. Maricopa County Superior Court. 631 F.3d 963, 976-77 (9th Cir. 2011) (African American man's claim that "false sexual harassment allegations were made against him and that action
was taken on these false charges because ofthe combination of his race and gender" 

### was "perfectly plausible.").9 "The burden ofestablishing a prima facie case ofdisparate treatment is not onerous." Texas Dep't ofCmtv. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). "The 'requisite degree ofproofnecessary to establish a prima facie case ... is minimal and does not even need to rise to the level of a preponderance ofthe evidence.'" Fulton v. Dep't of Social &Health Svcs.. 169 Wn. App. 137, 152,279 

### P.3d 500(2012)10 (quoting Wallisv. J.R. SimplotCo., 26F.3d 885, 889(9th Cir.1994)). To establish a prima facie case ofdiscrimination, Satterwhite must show (1) he 

### belongs to a protected class, (2) he was treated less favorably inthe terms or conditions of his employmentthan similarly situated employees, and (3) he engaged in substantially similar work as nonprotected class employees. Domingo v. Boeing Emps.' 

### Credit Union. 124Wn. App. 71, 81, 98P.3d 1222(2004).11

9BecauseWLAD is patterned afterTitleVII of theCivil Rights Actof1964, 42 U.S.C. 2000a, Washington courts rely on federal decisions interpreting TitleVII to decide issues underWLAD. See e.g. Oliverv. Pac. Nw. Bell Tel. Co.. 106 Wn.2d 675, 678, 724 P.2d 1003 (1986): Haubrv v. Snow. 106 Wn. App. 666, 674 n.7, 31 P.3d 1186 (2001). 10 (Alteration in original) (emphasis in original). 11 The elementsfor a prima faciecase are not absolute butvary based on therelevantfacts. Texas Dep't ofCmtv. Affairs v. Burdine. 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Grlmwood v. Univ. of Puget Sound. Inc.. 110 Wn.2d 355, 363, 753 P.2d 517 (1988).

14No. 68763-8-1/15 To establish a prima facie case ofhostile work environment, Satterwhite had the burden ofshowing (1) the harassment was unwelcome, (2) the harassment was because of his race or gender, (3) the harassment affected the terms or conditions of employment, and (4) the harassment is imputed to the employer. Estevez v. Faculty Club ofthe Univ. ofWash.. 129 Wn. App. 774, 794, 120 P.3d 579 (2005). To meetthe third hostile work environment element, Satterwhite must establish that the harassment
was "sufficiently pervasive so as to alter the conditions ofemployment and create an abusive working environment." Glasgow v. Georgia-Pac. Corp.. 103 Wn.2d 401, 406, 693 P.2d 708 (1985). Once the plaintiffpresents a prima facie case, a presumption ofdiscrimination exists and the employer must produce evidence of legitimate, nondiscriminatory

reasons for its actions. Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 363- 

### 64, 753 P.2d 517 (1988). Ifthe defense meets this burden, the plaintiffmust showthat 

### the employer's stated reasons are pretextual. Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 182, 23 P.3d 440 (2001). overruled on other grounds by McClartv v. Totem Elec. 157 Wn.2d 214, 137 P.3d 844 (2006). 

### Inorderto show that an employer's stated rationale for an employmentdecision


### was pretextual, inotherwords, "unworthy of belief," the plaintiffmust produce evidence from which a trier of fact could inferthatthe employer's "articulated reasons" for the 

### employment decision "(1) have no basis in fact, (2) were not really motivating factors for the decision, or (3) were not motivating factors inemploymentdecisions forother 

### employees in the same circumstances." Kirbv v. City ofTacoma, 124 Wn. App. 454, 467, 98 P.3d 827 (2004). It is wellestablished that a plaintiffneed not "produce 'direct

15No. 68763-8-1/16 evidence ofdiscriminatory intent.'" Hill, 144 Wn.2d at 179 (quoting U.S. Postal Serv. Bd. of Governors v. Aikens. 460 U.S. 711, 714 n.3. 103 S. Ct. 1478, 75 L. Ed. 2d 403 (1983)). " 'Circumstantial, indirect and inferential evidence willsuffice to discharge the plaintiffs burden.'" HiH, 144 Wn.2d at 179-80 (quoting Sellsted v. Wash. Mut. Sav. 

### Bank. 69Wn. App. 852, 860, 851 P.2d 716(1993)).12 The record establishes a factual and legal basis to file the discrimination claims. Satterwhite is African American and was the only male inthe CWTAP. Satterwhite testified that he was treated differently based on both race and gender. Satterwhite testified that Hetherington and the CWTAP Associate Director scrutinized his work more closely than the white female who held the same position as Satterwhite. Satterwhite also testified that he was treated differently byAssociate Dean Spearmon and Dean 

### Uehara inevaluating the allegations ofMcRae because of his race and gender. In addition, Satterwhite testified that he was discriminated against by his coworkers, with


### one of his coworkers making the comment, "[Y]ou know how y'all black men are." Further, while the UWargues that Satterwhite's resignation was voluntary, the 

### presumption that resignation is voluntary can be rebutted "by showing the resignation
was prompted byduress or an employer's oppressive actions." Townsend v. Walla Walla Sch. Dist. 147 Wn. App. 620, 627-28, 196 P.3d 748 (2008). Satterwhitetestified that he did not know that he would lose his job until he received the letterfrom Associate Dean Spearmon and that he signed the agreement under duress.

12Wenote thatpretextistypically aquestion offact. Fellv. Spokane TransitAuth.. 128Wn.2d 618, 643, 644, 911 P.2d 1319 (1996) {reversing summaryjudgment, noting pretextis usually a question of fact and that on remand, plaintiffs "will have the opportunity
... to conduct appropriate discovery" to prove pretext).
16No. 68763-8-1/17
We conclude that when Satterwhite filed his lawsuit it was reasonable to believe he had meritorious claims for discrimination and unlawful discharge. But inopposition to summaryjudgmentdismissal of his discrimination claims, Satterwhite presented no 

### evidencetorebutthelegitimate nondiscriminatory reasonspresented bytheUW.13 On remand, the court should determine whether at some pointfollowing discovery and before summaryjudgment Satterwhite and Martin knew or should have known that the facts and law did notjustify continuing to pursue these claims. Where the CR 11 " 'sanctions imposed are substantial inamount, type, or effect, appellate review of such awards will be inherently more rigorous; such sanctions must be quantifiable with some precision.'" Korum Ford, 80 Wn. App. at 892 (quoting Thomas v. Capital Sec. Servs.. Inc.. 836 F.2d 866, 883 (5th Cir. 1988)). Under CR 11, 

### the court must limit an award ofattorney fees to" 'the amounts reasonably expended in 

### responding to the sanctionable filings.'" Korum Ford, 80 Wn. App. at 891 (quoting Biggs II, 124 Wn.2d at 201). The court should also impose the least severe sanction 

### necessary. Miller v. Badglev, 51 Wn. App. 285, 303-04, 753 P.2d 530 (1988). CR 11 should not be used as a fee shifting mechanism. Bryant, 119 Wn.2d at 220. In 

### addition, where a partyvoluntarily dismisses a baseless claim, "such corrective action should be used to mitigate the amount ofsanction imposed." Biggs II, 124 Wn.2d at
199-200.

13TheUWargues thatSatterwhite presented noevidencetorebutthe same actorinference. Hi! 144 Wn.2d at 189 (emphasis in original) (noting that when an employee is both hired and fired by the same decision makers "within a relativelyshort period of time, 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"). Satterwhite's failure to overcome an inference at summaryjudgmentis not dispositive ofwhetherthe court properly imposed sanctions for filing the claim.
17No. 68763-8-1/18 The award ofattorney fees and costs inthis case is not limited to the least


### severe sanction necessary and is not limited to the amounts reasonably expended in responding to sanctionable conduct. Exceptfor $750 ofthe amountthe UWrequested, 

### the court awarded all ofthe attorney fees and costs incurred bythe UW, totaling $78,968.25. On remand, the court shall determine the amount offees reasonably expended, taking into consideration dismissal ofclaims and the least severe sanction.
RCW 4.84.185 Satterwhite and Martin contend the court erred in imposing sanctions under RCW 

### 4.84.185 because thediscrimination andwrongful discharge claims were notfrivolous.14 RCW4.84.185 allows for recovery ofattorney fees and costs by the prevailing 

### partywhere thelawsuitisfound to be"frivolous."15 Generally, a lawsuitor an appeal is frivolous when itcannot be supported by any rational argument on the law or facts, or " 'ifthere are no debatable issues upon which reasonable minds might differ and it is . . . 

### totally devoid ofmerit.'" Quick-Ruben. 136Wn.2d at 905 (quoting Presidential Estates ApartmentAssocs. v. Barrett. 129 Wn.2d 320, 330, 917 P.2d 100(1996)). Under RCW 

### 4.84.185, "[t]he lawsuit, as a whole, that is in its entirety, must be determined to be frivolous and to have been advanced without reasonable cause." Biggs v. Vail, 119 

### Wn.2d 129, 137, 830 P.2d 350 (1992). Because the discrimination and wrongful
14 Satterwhite and Martin also argue that the court may notaward fees underRCW4.84.185 unless the lawsuitwas frivolous and "interposed forpurposes of delay, nuisance, spite, or harassment." The text of the statute contains no such requirement. Highland Sch. Dist. No. 203 v. Racy. 149 Wn. App. 307, 311, 202 P.3d 1024 (2009) (acknowledging legislative history but holding, "Nothing in the statute requires a court tofind that the action was brought in bad faith or forpurposes of delay or harassment"). 15 RCW4.84.185provides, in pertinentpart: [U]pon written findings by the judge that the action, counterclaim, cross-claim, third party claim, or defense was frivolous and advanced without reasonable cause, [the court may] require the nonprevailing party to pay the prevailing party the reasonable expenses, including fees of attorneys, incurred in opposing such action, counterclaim, cross-claim, third party claim, or defense.
18No. 68763-8-1/19 discharge claims were not "frivolous and advanced without reasonable cause," the court 

### abused its discretion inawarding attorney fees and costs under RCW4.84.185. We vacate thejudgment and remand to reconsiderthe award ofattorney fees and costs under CR 11.16 

# ijWali2iv
WE CONCUR: 

# &X,J16WedenytheUWsrequestforfees under RAP 18.9(a). Satterwhite's appeal isnotfrivolous because itpresents issues upon which reasonable minds might differ. Reid v. Dalton. 124 Wn. App. 113, 128, 100 P.3d 349 (2004) (quoting Fay v. Nw. Airlines. Inc., 115Wn.2d 194,200-01, 796 P.2d 412 (1990)) (" 'An appeal is frivolous ifthere are no debatable issues upon which reasonable minds might differ and it is so totally devoid of merit that there was no reasonable possibility ofreversal.'")

19