IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ANNE L. BAILEY, Appellant,

v. KENT SCHOOL DISTRICT, Respondent. NO. 73365-6-1

DIVISION ONE

UNPUBLISHED OPINION FILED: May 16,2016 o as C/>0 r-tc; er —t _~» as. 33» —.^ _*£ O-il ~ri.,» "n

— i • "r-» wi-i en s&^a'r 5>T;r^, 

# 1 :£r~

«•—• CT<^

• « '«->*! r—"s " \^~> _ii - oTM: <j\ 2--C



### Lau, J. —Anne Bailey appeals the summaryjudgmentdismissal ofher hostile workenvironment, retaliation, and Family Medical Leave Act (FMLA) claims against her 

### former employer, the Kent School District. The trial court properly dismissed her claims because she failed to show an essential element on her hostile work environment and retaliation claims. And even ifwe assume an FMLAviolation, Bailey shows no adverse 

### consequence fromthe District's policy. We affirm. FACTS 

### Anne Baileywas hired in 2005 by the KentSchool Districttoteach special education at Kent-Meridian High School. About two years later, she also took on curricular leaderduties. This required Bailey to make new studentplacementdecisions.No. 73365-6-1/2 

### Bailey's coworker, Tabitha Browning, disagreed with Bailey's new student assignment protocol. Browning wanted to teach only students who were on her "case load." This dispute caused Bailey and Browning to bitterly clash overthe years. Building Principal 

### Wade Barringerexplained Browning's adamant stance for teaching only case load students: [Browning] was very adamant about having only kids on her caseload in herclasses.... That way, she has control ofher kids' learning. If 

### they're—ifshe has kids that are being served in math, then instead of having another math teacher, she has control overtheir IEP. She knows their goals. She knows exactly whatthey need to be learning versus 

### having to—the other non-case manager special ed teacher ha[s] allthe accommodations and information aboutthose students' goals, itwould cut outthe middleman and she would have that direct knowledge ofwhat those students needed, so therefore, having all of her kids in her caseload, she'd be able to teach exactly whatthe IEP team and she had decided were the goals for that student. Clerk's Papers (CP) at 52. 

### But this was not the only source oftheirconflict. InFebruary 2011, Bailey wrote 

### to Barringer to express frustration over the behaviorof "an individual" who was "allowed to ignore" school policies. CP at 263. She claimed "this individual has again circumvented department protocol, undermined the leadership, and gone to an administratordisrupting our procedures inplace." CP at 263. 

### Bailey's letter pointed to Browning's failure tofollow department protocol. She said Browningpressured a coworkerto take a learning disabled studentthat had been 

### assigned to Browning's class. She complained that Browningperformed an "under the table switch to geta studentout of her class." CP at 264. And she described how 

### Browning forced a learning disabled studentout of herclassroom, "[t]he same individual insisted the studentwas EED and force moved this student out of her classroom and off

-2-No. 73365-6-1/3 

### her caseload." CP at 264. Baileyquestioned why Browningwas allowed to breakthe rules: 

### What Idon't understand is how an individual can circumvent department procedures and protocol, undermine department leadership and placements, and be given permission by admin to assess and move 

### students... We alltake the students and teach them. Why then, is this one individual allowed the luxury to give additional assessments, and 

### move students out of her class to maintain class size and autonomy. The rest ofourdepartmentdoes not have the luxury, and follows agreed upon department procedures. General ed and ELL teachers do not have this privilege eitherto my knowledge. Iam simply identifying how ourteam cannotwork as a well-oiled machine when individual team members run rogue. CP at 264-65. Bailey's letter suggested that the Districtcreate a fulltime administrative "Special Services Coordinatorposition" to do administrative and curricular leader duties. CP at 262. Bailey asked for help to manage herworkload and more supportfor her personal and professional growth. InJune 2012, Bailey wrote a 12-page letterto Barringer. The letter alleged that Browning's actions created, "a hostile work environment [that] has been ongoing for the

seven years in which Ihave been an employee at Kent-Meridian High School and Kent School District." CP at 267. She said Browning "publicly humiliated," "belittled," "maligned" "intimidated]," "chew[ed] out," and otherwise came into conflictwith her and school employees. CP at 267-71. In addition, Bailey also claimed Browning discriminated against students of color: [Browning] continually circumvents department building protocol regarding IEP team decisions, SE student placements, SE student scheduling and registration, and presses staffto make changes orchange decisions, in particular with students of color that have a specific skill set, behaviors, or are challenging.
-3-No. 73365-6-1/4



### CP at 272 (emphasis added). She discussed how Browning's behaviornegatively affected students. Bailey also claimed "there were feelings that [an African American teacher] was being singled out and discriminated against." CP at 268. She blamed Browning's behaviorfor the negative impacton her health: 

### "migraines, high blood pressure, nausea and undo [sic] stress," which has "impacted my ability to function efficiently, increase/impacted my workload and that ofothers within 

### the department, and caused me to use a sickday on June 7, 2012 due to her behaviors." CPat276. 

### Bailey's deposition testimony described how Browning treated students ofcolor 

### differently. She described several examples that her husband, Ed Bailey, an instructional aide, told her about. For example, a student of color that has transferred to our school, the student required, for her specifically designed instruction, a class that [Browning] taught. The studentwas placed in her class for that partofthe student's IEP. [Browning] told Ed Bailey in front ofthe student, within hearing ofother students that, [s]he's behavior, Idon't want her here, she does not belong in my class.
CP at 226-27. There were other students in the class thatwould be offtask, goofing off, talking, making noise. This particularAfrican American male student, ifhe shuffled his feet, he turned around or spoke, she'd say, [s]top, be quiet, don't do that, turn around. She criticized how he solved math problems. She would not allow him to eat his breakfast or some food in class after missing breakfast, but allowed other students in the class to eatfood in the class. CP at 227.

-4-No. 73365-6-1/5 The sibling ofthis student, also African American female, transferred in. Ms. Browning did not allow her to enterthe classroom. She put up her hand, per Mr. Bailey, shooed her out into the hall, told Mr. Bailey to take her to the library and give her an assessment test to see ifshe was placed correctly. Mr. Bailey said—told Ms. Browning, We're no longer giving that test; she doesn'tfeel well today. Ms. Browning said, Give it to her anyway. CP at 227-28. Bailey acknowledged that several parents commented on Browning's behavior, but none mentioned race as a factor, "[t]hey complained about different treatment. They did not say ofcolor." CP at 32. Barringerfirst learned about Bailey's discrimination accusations against Browning in Bailey's June 2012 letter. The labor relations directorcontacted the teacher's union to arrange for mediation between Bailey and Browning. On June 19, the teacher's union asked Bailey to withdraw hercomplaint. She declined and Bailey claims the union presidentthreatened herwith disciplinary action. On August 3, Bailey and Browning unsuccessfully mediated theirdisputes. 

### Bailey acknowledged that Browning wanted to "work this out" and appeared "sincere." CP at 36. But she claimed the mediator cut her off, told her she was lying, and 

### displayed aggressive and angry behavior. Bailey leftthe mediation upset and withdrew her grievance. 

### Ed Bailey said the mediation "traumatized" Bailey and caused herto take a leave ofabsence. CP at47. Bailey asked abouttaking medical leave. The District told her 

### she could not apply for FMLA leave until she exhausted all her paid leave. On August 16, Bailey prepared for the upcoming school year. Bailey sent 

### Barringer a letterfrom herdoctorthree days before school started. Dr. Gallevo

-5-No. 73365-6-1/6 disclosed that he was treating Bailey for an "acute medical condition" and "recommend[ed] medical leave for 6 weeks." CP at 483. Bailey metwith Barringer before her medical leave to talk about her excessive workload. Bailey repeated her earlier requestfor a non-teaching position with emphasis

on curricular leaderduties. Barringerdeclined and explained that the District lacked sufficient staff "to make her a full-time non-teaching position." CP at 318. He said he would check into it. Barringerdiscussed Bailey's request with the executive director of inclusive education, KimHaley. He told her about Bailey's health concerns, reluctance to return as a fulltime teacher, and the problems with Browning. Haley told Barringer the District lacked staffing availability for a purely administrative position. Barringer redistributed Bailey's students and case load responsibilities to other teachers due to Bailey's medical leave. The co-curricular leader, Shaundra Rogers, agreed to take on full responsibility for thisjob until Bailey returned. In November2012, Barringer and Bailey talked briefly about her return to work. Bailey asserts Barringer said the Districtdeclined to approve the fulltime administrative position she proposed, and itnamed anotherteacher the "department head." He "wanted to be sure" that what she was "expecting to come backto was actually what it was" and she "had to teach full-time, five periods, with full IEP caseload, or resign." Bailey alleged Barringertold her she had "emotional problems." CP at 252. Bailey decided not to return to work after she metwith hertreatment provider. On November 2, 2012, Bailey submitted an FMLAapplication for medical leave to begin that day and with an expected return date of February 4, 2013. She described her

-6-No. 73365-6-1/7 

### serious health condition as "309.28 Adjustment disorderwith mixed anxiety [and] depression" caused by "bullying environment at work." CP at 282. 

### About a week later, Bailey filed a discrimination claim withthe Equal Employment Opportunity Commission (EEOC). She alleged that Barringer's negative attitude and her "demotion" were motivated by herdisabling condition and requestfor accommodations. She also alleged that the District gave heroral approval "for a non

### teaching position for 2012-13 school year. Iwas informed during the 11/1/12 phone call to return to work as a teacher or resign." CP at 501. On November 27, Bailey's attorney wrote a letterto requestthe Districtto accommodate Bailey's medical condition by creating a non-teachingjob for her based 

### mainly on Bailey's presentduties as a curricular leader.1 The letterclaimed thatthe District had failed to engage in "any type of interactive process with Ms. Bailey to collaboratively design appropriate reasonable accommodations." CP at 211. Bailey proposed a non-teaching accommodation: The accommodations she is seeking include the following: a. To continue functioning in the shared Department Head role; b. To perform non-teacher administrative duties in the Special Education Department at Kent-Meridian high School until the end ofthe school year; and, c. To provide support services for Special Education students at KentMeridian High School—to include collaborating with special education teachers to further the goals ofthe students. CP at 211. Ifgranted, Bailey proposed "to return to work inJanuary 2013 immediately afterWinter Break.. ." CP at 211. The District asked for a meeting to discuss Bailey's proposed accommodations.



### 1Bailey's official titlewas co-curricular leader. She describes her position variously as curricular leader and department head. -7-No. 73365-6-1/8 On December 10, Bailey, her attorney, District officials, and the District's attorney, Chuck Lind, metto discuss Bailey's requestfor accommodations. Bailey asked for the non-teaching accommodation described in her letterto the District. Lind repeated the District's position on Bailey's requestfor a non-teachingjob. He told her the District could not create an all administrative non-teachingjob for her. Lind informed her she would have to return to teaching three classes per day and resume work as cocurricular leader. Atthis meeting, Bailey agreed to return to workwithout accommodations. On December 13, Bailey's attorney followed up with a letterto Lind aboutthe December 10 meeting. [W]e agreed that Ms. Bailey will return to work inJanuary 2013. She will resume herco-Department Head duties
... [a]s of our meeting, no final decision had been made by the district about her date of return ... It makes sense for Ms. Bailey to return early in January so that she may get up to speed... CP at 511. The letter included items Bailey proposed to work on before the next semester, "[w]ith all this to accomplish before the semesterbegins, we propose that Ms. 

### Bailey return immediately afterthe winter break." CP at 512. On December 14, Lind confirmed Bailey's return to work date, "atthe end of 

### January 2013, and sooner, if possible." CP at516. He warned, itwas "highly unlikely thatthe school will be able to transition you backto classroom assignments and other 

### responsibilities inthe few weeks remaining inthe semester." CP at 516. In Lind's December 17 letterto Bailey's attorney, he told herthat Bailey could 

### return to work on January 28, 2013, when the new semester started. Linddisagreed 

### withBailey's attorney on the return to work date issue: "[t]here was an agreementat this

-8-No. 73365-6-1/9 

### meeting that she would return to workduring the second semester, and earlieronly if the district had a specific need. Currently there is no such need, according to the building principal." CP at 519. The District was closed for winter break between December 20, 2012 and January 3, 2013. On December21, Bailey sentthe District a letterfrom her doctor stating "[s]he is medically cleared to return to work on 1/3/13." CP at 523. Bailey's attorney e-mailed Lind the same day about the return date: Ms. Bailey asks thatthe Districttreat her similarly and reconsider and allow herto return on 1/3. Moreover, her return date should be governed by her doctor's release, not some arbitrary date set by the employer. It will be a disservice to the students to force Ms. Baileyto begin her new year with no planning. Please let me know atyour earliestconvenience if the District willallow Ms. Bailey to return to work as a paid employee on 1/3 if her doctor so recommends. CP at 528. Lind explained thatwhen Bailey took medical leave on short notice, Barringer redistributed her responsibilities among the staff: When [Bailey] announced that she would be taking a medical leavejust days before the first semester began, neitherthe day-to-day substitute solution northe long-term substitute was an appropriate and/or available option. Instead, Dr. Barringerworked to redistribute Anne's special education classes and caseload responsibilities among the other staff. Once done, it is a very difficult taskto shiftthe classes and responsibilities again mid-semester. As of November, yourclient had indicated that she would not be returning from her medical leave until February 2013. However, when we met December 10 she stated that she would be able to return by January and the district agreed thatthe start ofthe second semesterwould be a good time for transitioning her back into the building.

.. [Transitioning [Bailey] backto her classroom and curricular role as [sic] the beginning ofthe semesterJanuary 28 was a carefully considered, reasonable and logical decision.

-9-No. 73365-6-1/10 CP at 525. If Bailey chose to return before January 28, Barringer "would guarantee her
an assignment somewhere inthe district every day until she begins at Kent-Meridian January 25." CP at 526. But he could not guarantee where she might be assigned to teach. And the Districtwould pay Bailey her normal salary rate for any substitute teaching rather than the guest teacher rate. On January 2, 2013, Bailey's attorney e-mailed Lind about Bailey's plan to work the next day and that she "expect[ed] to perform the same or similarjob duties as she 

### performed at the end oflastyear and for which she has been contracted to perform this year." CP at 535. She said Bailey expected the same treatment as others returning from FMLA leave and wanted no accommodations. The District repeated its substitute teaching offer. Italso questioned why counsel instructed Bailey to return to work. 

### The next day at 7:30 am, Bailey wentto Barringer's office to check in for work. 

### Barringertold her he had no work for her atthat moment, but would conferwith Lind. At9:00 am, Baileyjoined Barringerand Lind on a five minute conference call. Bailey described Lind's tone as tense and angry: Then hejustwent into this, like, tirade, very loud, sounding very angry. Your attorney is not your employer; we are your employer. Do you understand? You are not authorized to be here today. Do you 

### understand? Excuse me. You may stay forthe day, but you will not be 

### paid. Do you understand? You have no curricularleaderduties, you have no teaching assignment, no classrooms, instructional duties. You are not authorized to be here. You were told to reportto Human Resources for substitute assignments. Do you understand?

•10-No. 73365-6-1/11
CP at 288.2 

### On January 6, Barringere-mailed Bailey about possible work if she returned on January 14. On January 9, Barringer e-mailed the work offerto Bailey again. Bailey responded with an e-mail to human resources about her decision to use the full 12 weeks of FMLAleave "through Feb. 1, 2013." CP at 543. 

### On January 17, Bailey's clinical psychologist, Mary Galaszewski, PhD, advised the Districtthat in her "professional opinion, Ms. Bailey cannot return to this work 

### environment again," due to herconflict with Lind. CP at 283. On January 31, Galaszewski sent another note to the Districtexpressing her 

### opinion that "the district attorney's behaviorwas hostile and intimidating and this caused trauma to my clientand exacerbated hercondition." CP at 547. She concluded that 

### Bailey could not "return to this work environment again." CP at547. On February 1, Lind e-mailed Bailey's attorney to askfor clarification, to request
a meeting, and to disagree with how Galaszewski characterized the January 3 telephone call with Bailey. 

### On February 6, Bailey's attorney responded that Bailey would "followher medical provider's recommendation included inthe letterthat has been forwarded to you, that she not return to her employmentwiththe Kent School District." CP at 552. On February 14, the Districtwrote Bailey to confirm ifshe was indeed resigning. The letter informed her the District would treat her actions as a resignation unless it



### 2When asked about Lind's tone at the meeting, Barringerstated itwas "direct." He said, "I wouldn't call it yelling. I'dcall it direct." CP at 328. He said he "didn't sense 

### anger" butthoughtthere might be some "frustration in there." CP at 328. -11-No. 73365-6-1/12 

### heard otherwise from her. The Districtstressed to herthat she was "not being discharged or non-renewed." CP at 554. 

### On February 3, 2014, Baileyfiled a lawsuit againstthe Kent School District alleging claims for employment discrimination, hostile work environment, retaliation, 

### violations of FMLA, intentional and negligent infliction ofemotional distress (outrage), failure to accommodate, and disability discrimination. 

### On March 3, 2015, the District moved for summaryjudgmenton Bailey's claims. In Bailey's opposition to summaryjudgment, she voluntarily dismissed her claims for failure to accommodate, disability discrimination, and intentional infliction of emotional distress. The trial court granted summaryjudgment and dismissed Bailey's remaining claims.3 Bailey appeals. ANALYSIS Standard of Review Bailey contends the trial court erred by dismissing herclaims against the Kent School District on summaryjudgment. The District argues that Bailey failed to establish
at least one essential element on each of her claims. This court reviews whetherthe trial court properly granted summaryjudgmentde

novo. Scrivenerv. ClarkCollege. 181 Wn.2d 439, 444, 334 P.3d 541 (2014). Summary



### 3The court indicated that it did not address Bailey's claim for negligent infliction of emotional distress because the District did not challenge thatclaim on summary judgment. Ina filing with this court, Bailey voluntarily dismissed that claim without prejudice under CR 41(a)(1)(B). -12-No. 73365-6-1/13 

### judgmentis onlywarranted when there is no genuine issue as to any material fact and the moving party is entitled tojudgmentas a matterof law. CR 56(c); Scrivener. 181 Wn.2d at 444. This court views all facts and makes all reasonable factual inferences in 

### the lightmostfavorable to Bailey, the nonmoving party. Scrivener. 181 Wn.2d at 444. Hostile Work Environment 

### Bailey argues thatthe trial court erred by dismissing her hostile work environmentclaim because she failed to show membership in a protected class. 

### Bailey's hostile work environment claim falls underthe Washington LawAgainst Discrimination (WLAD), chapter49.60 RCW. The Supreme Court has explained that summaryjudgment "is seldom appropriate inthe WLADcases because ofthe difficulty of proving discriminatory motivation." Scrivener. 181 Wn.2d at 445. "To overcome 

### summaryjudgment, a plaintiffneeds only to showthat a reasonablejury could findthat the plaintiff's protected traitwas a substantial factor motivating the employer's adverse 

### actions." Scrivener. 181 Wn.2d at445. The plaintiff's burden is one ofproduction, not persuasion, and may be proved through direct and circumstantial evidence. Scrivener. 181 Wn.2dat445. To establish a primafacie case for discrimination based on a hostile work environment, Bailey must show the harassment (1) was unwelcome, (2) occurred due to membership in a protected class, (3) affected the terms and conditions ofemployment, and (4) is imputable to the employer. Antonius v. King County. 153 Wn.2d 256, 261, 103 P.3d 729 (2004). The trial court dismissed this claim because Bailey failed to show membership in

a protected class:

•13-No. 73365-6-1/14 

### Plaintiff's claim that she was subjectto a "hostile work environment" stems 

### from hertreatmentby a co-worker who plaintiffsays bullied, maligned and harassed herovera period ofyears. Plaintiffvoiced complaints to her principal about her co-worker's alleged treatment. She does not claim to be a member of a protected class under RCW 49.60.180 nor under any 

### other section ofthe WLAD (exceptthat pertaining to retaliation which is addressed below.) Therefore, her hostile work environmentclaim fails and summaryjudgment is warranted insofar as this claim is not synonymous to her retaliation claim. CP at467 (emphasis added). Membership in a Protected Class 

### Bailey claims the trialcourt erred inconcluding she was not a memberof a protected class. She argues the hostile work environment she experienced "arises out ofher actions to protectthe disabled students of color." Br. ofAppellantat 28. The WLAD creates several protected classes. Itprohibits an employerfrom discriminating against an employee on the basis of "age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence ofany sensory, mental, or physical disability. .." RCW 49.60.180(2). 

### Bailey argues that reporting discrimination is a protected activity. She cites Ray
v. Henderson. 217 F.3d 1234, 1246 (9th Cir. 2000). Ray is not helpful. Thatcase 

### addressed whether a male worker's sexual harassment reportoffemale colleagues was
a protected activity underTitle VII. The case did not address the question here— whether a plaintiffwho reports alleged discrimination is a protected class memberfor purposes of a free standing hostile work environmentclaim. Bailey also cites Johnson v. Riverside Healthcare System. LP. 534 F.3d 1116, 1123 (9th Cir. 2008), where the court noted that discriminatory conduct directed at an

-14-No. 73365-6-1/15 

### individual otherthan the plaintiff"may be relevantto a hostile work environmentclaim." As in Ray. Johnson does not address the relevant question presented here. 

### Baileyalso claims she is a memberof a protected class because she reasonably believed she was opposing discriminatory practices. She relies on the WLAD's 

### retaliation statute, RCW49.60.210(1 ).4 Actions taken inresponse to an employee's opposition to discrimination constitute retaliation, not a claim for hostile work environment. See Currierv. Northland Servs.. Inc.. 182 Wn. App. 733, 742, 332 P.3d 1006(2014). 

### Bailey's claim also fails because she produced no evidence that Browning's alleged harassmentwas motivated by plaintiff's race, gender, sexual orientation, or another protected class. 

### Bailey also argues that her protected class status arises from her actions to 

### protectdisabled students. She relies on Johnson. But that case did notaddress "associational discrimination." Associational discrimination occurs when a nonminority 

### is discriminated againstfor "sidingwith" a minority. See Barret v.Whirlpool Corp.. 556 F.3d 502, 515 (2nd Cir. 2009); Reply Br. ofAppellant at7. 

### Even ifassociational discrimination applied here, Bailey's claim fails because she did not show she suffered adverse actions because ofher advocacy for, or association 

### with, students of color. Barrett. 556 F.3d at 515. The record contains overwhelming 

### evidence that Bailey's advocacyfocused on herselfnot formembers of any protected
class.



### 4That statute makes it unfair for an employerto "discharge, expel, or otherwise 

### discriminate against any person because he orshe has opposed any practices forbidden by this chapter." RCW49.60.210(1). -15-No. 73365-6-1/16

Retaliation Bailey also claims the District retaliated against herfor "seeking accommodation," "filing a charge ofdiscrimination with the Equal Employment Opportunity Commission when [the District] refused her accommodation
... demoted her after she made her request and forced her out ofthe workplace with intimidation by 

### [the District's] General Counsel."5 Br. ofAppellant at 30. Anemployermay not retaliate against an employee for opposing the employer's discriminatory practices orfor filing a 

### discrimination claim againstthe employer. RCW49.60.210(1 ).6 To establish a primafacie case of retaliation Bailey must show (1) she engaged in a statutorily protected activity, (2) the Districttook some adverse employment action against her, and (3) a causal linkbetween her protected activity and the District's action. Estevez v. Faculty Club of Univ. ofWash.. 129 Wn. App. 774, 797, 120 P.3d 570 (2005). Bare assertions at summaryjudgmentthat a genuine material issue exists will not defeat a summaryjudgment motion inthe absence ofactual evidence. Trimble v. Wash. State Univ.. 140Wn.2d 88, 93, 993 P.2d 259 (2000).


### 5Bailey's briefing alleges a confusing array of Districtactions she claims are retaliation. But most of her arguments lack meaningful analysis, citation to authority, and consistofconclusory statements. Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (appellate courts do not considerclaims not 

### supported by references to the record or citation to authority); McKee v. Am. Home Products. Corp., 113 Wn.2d 701, 705, 782 P.2d 1045 (1989) ("We willnot consider 

### issues on appeal that are not raised by an assignmentoferroror are not supported by argument and citation to authority."). 

### 6Under RCW 49.60.210(1), an employer may not retaliate against an employee for opposing a prohibited practice: 

### (1) It is an unfair practice for any employer, employmentagency, labor union, orother person to discharge, expel, orotherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding underthis chapter.

-16-No. 73365-6-1/17 

### The plaintiffneed not show the adverse employmentaction was a "but for" cause ofthe protected activity. Allison v. Housing Auth. ofCity of Seattle. 118 Wn.2d 70, 95- 96, 821 P.2d 34 (1991). The plaintiffinstead must show that itwas a "substantial factor" in the employer's decision to retaliate. Allison. 118 Wn.2d at 95-96. 

### Where a WLAD plaintifflacks directevidence ofdiscrimination, we employ a three-part burden shifting framework. McDonnell Douglas Corp. v. Green. 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Texas Dep't of Cmtv. Affairs v. Burdine. 

### 450 U.S. 248, 256, 101 S. Ct. 1089, 67 L Ed. 2d 207 (1981). Underthis burden shifting framework, Bailey bears the initial burden to demonstrate a primafacie case. Ifshe succeeds, the burden shifts to the District to presentevidence of a legitimate, nondiscriminatory reason for its actions. The burden then shifts backto Bailey to produce evidence that the District's stated reason for the adverse employment action is
mere pretext. Anica v. Wal-Mart Stores. Inc.. 120Wn. App. 481, 488, 84 P.2d 1231 (2004). Bailey bears the ultimate burden of establishing her claims at trial. To survive summaryjudgment, she need only show that a reasonablejury could find that her retaliation claims, noted above, were substantial motivating factors for an adverse employment action. Hill v. BCTI Income Fund-I. 144Wn.2d 172, 185-87, 23 P.3d 440 (2001); Wilmot v. KaiserAluminum and Chem. Corp. 118 Wn.2d 46, 71-72, 821 P.2d 18 (1991).

•17-No. 73365-6-1/18
Protected Activity Bailey claims her requestfor an accommodation and filing an EEOC claim are 

### protected activities.7 Hansen v. Boeing Co.. 903 F. Supp. 2d 1215, 1218 (W.D.Wash. 2012); RCW 49.60.210. The District does not dispute that these actions constitute protected activity for a retaliation claim. Bailey also argues that her complaints about Browning constitute protected activity. Bailey claims the District retaliated against her based on repeated complaints about Browning. But the record contains overwhelming evidence that Bailey's complaints about Browning were all about disagreements over student assignments and communication styles. Nothing about her complaints are based on WLAD. We are not persuaded by Bailey's present claims that Browning disproportionately rejected students of colorand Bailey was a "whistle-blower" on Browning's race discrimination. The record provides no supportfor these claims. For example, Bailey points to no racial remarks orfaculty, parent, or student complaints about Browning discriminating against students ofcolor. Bailey presented no relevant evidence that Browning discriminated against students ofcolor. The undisputed 

### evidence shows Browning's preference for teaching only "case load" students. This is a 

### nondiscriminatory explanation and Bailey makes no attemptto show it is a pretextfor discrimination.



### 7These "protected activities" are also based on Bailey's allegation thatthe District refused to place her inthe non-teaching position she repeatedly requested. -18-No. 73365-6-1/19
Adverse Employment Action 

### Bailey claims she suffered an adverse employment action when she requested

an accommodation and exercised her right to medical leave. An adverse employment action "involves a change in employmentconditions that is more than an inconvenience or alteration ofone'sjob responsibilities, such as 

### reducing an employee's workload and pay." Alonso v. QwestCommunications. Co.. 178 Wn. App. 734, 746, 315 P.3d 610 (2013). Whetheran action "is materially adverse depends upon the circumstances ofthe particularcase, and 'should bejudged fromthe perspective of a reasonable person inthe plaintiff's position.'" Tvnerv. State. 137 Wn. 

### App. 545, 565,154 P.3d 920 (2007) (quoting Burlington North. &Santa Fe Rv.Co. v. White. 548 U.S. 53, 126 S. Ct. 2405, 2417, 165 L Ed. 2d 345 (2006)). The trial court dismissed this claim because Bailey suffered no adverse employment action: 

### When [Bailey]appeared ready to return to herformer position as a teacher on January 3, 2013, heremployer, afterclaiming to be caught by surprise, 

### agreed to startherbackinthat position within two weeks ofher return to work and offered to employ her as a substitute teacher inthe interim. The evidence does not support an adverse employment action under RCW 49.60.180. CP at 460. 

### Bailey claims she suffered three adverse actions: (1) the Districtdemoted her when Barringertold her she had to teach a full class load or resign while she was on leave; (2) the Districttreated her less favorably fromother return to workemployees who were immediately allowed to resume their originalpreleave duties; (3) the District's attorney yelled at heron January 3.

•19-No. 73365-6-1/20 

### Judged by a reasonable person inBailey's position, the undisputed facts do not show any material adverse actions bythe District. The Districtwas prepared to restore 

### Bailey to her former position soon after her January 3 return to work. The record shows that Bailey's unilateral decision to return to work on very short notice surprised the District. The District offered short-term alternatives at her normal salary and offered to reinstate herto heroriginal duties. 

### Baileyalso argues she suffered an adverse employmentaction based on her interaction with Lind on January 3. She claims Lind knew she suffered from anxiety and 

### depression and yelled at her anyway. The problem with this contention is Baileyargues Lind's behavior "lead to [Bailey's] constructive discharge." Br. of Appellant at 3-4. We decline to address herconstructive discharge claim. She failed to analyze this claim 

### and provided no case authority. This argument is waived. We do notconsider 

### arguments unsupported by argument or citation to legalauthority. RAP 10.3(a)(6); Cowiche Canvon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992). 

### Bailey also fails to establish a nexus between the alleged adverse action and protected
activities. 

### Even ifwe assume Baileysuffered an adverse action based on protected activity, she fails to show the District's nondiscriminatory explanation was a pretextfor discrimination. Pretext 

### The trialcourt ruled that even ifBailey proved a nexus between a protected 

### activity and an adverse employment action, shefailed to show the District's nondiscriminatory explanations were pretext:

-20-No. 73365-6-1/21 

### Furthermore, even ifthe evidence taken in the lightmostfavorable to the 

### plaintiffestablished a nexus between the protected activity and an adverse employmentaction, the defendant has established legitimate non 

### discriminatory bases for not creating a non-teaching position for Ms. 

### Bailey when she was requesting itand for not returning her to a classroom on January 3, 2013. Plaintiff has presented no evidence that the reasons 

### stated 1)that no non-teaching positions were funded or available and 2) that putting her in a classroom within a month ofthe end ofthe semester 

### would disrupt and adversely affect students have been rebutted by any showing of pretext. CP at 460. 

### Under the burden shifting framework discussed above, Baileydoes not showthe District's nondiscriminatory explanations constitute pretextfordiscrimination. "An 

### employee may satisfy the pretext prong by offering sufficientevidence to create a 

### genuine issue of material fact either (1)thatthe defendant's reason is pretextual or (2) that although the employer's stated reason is legitimate, discrimination was 

### nevertheless a substantial factor motivating the employer." Scrivener. 181 Wn.2d at 446-47. The plaintiffmay showthis by demonstrating the explanation (1) has no basis 

### in fact, (2) were not reallyfactors for itsdecision, (3) were nottemporally connected to the adverse action, or (4) were not motivating factors inemploymentdecisions forother employees in the same circumstances. Scrivener. 181 Wn.2d at 447. 

### The District presented nondiscriminatory explanations for each ofBailey's 

### claimed adverse actions. The District did not put Bailey backto work on January 3 because herfirst requestto return to teaching before the beginning ofthe second semesterwas at 3:00 pm on January 2. By January 6, the District offered her interim employment. The District reasoned thatto reassemble Bailey's students and classes weeks before the end ofthe semesterwould cause substantial disruption. The District's actions were the productof "the lateness ofplaintiff's change-of-heart, and good

-21-No. 73365-6-1/22 

### educational policy." Br. of Resp't at44. Bailey readily conceded at oral argumentthat the District was unable to reconstitute her classrooms on short notice without causing significantdisruption for her students. The record also shows the Districttried to honor Bailey's request to return on January 3. Itoffered temporary work as a substitute teacherwith the same salary, the
same benefits, and the same hours as heroriginal position. The District also offered to let her start work on January 14 doing catch up work on lEPs and other necessary tasks. Bailey's retaliation claim fails. FMLA Violations 

### Bailey argues the Districtinterfered with herright to FMLA protected leave when it (1) required herto exhaustpaid leave before FMLAprotected leave, (2) declined to return herto heroriginal job after medical clearance, and (3) offered her a nonequivalentjob upon her return. 

### Even if we assume withoutdeciding thatthe District interfered with Bailey's 

### FMLA right by insisting she exhaustpaid leave before FMLA protected leave, Bailey shows no adverse consequence from the District's policy. We need not address 

### Bailey's remaining claims given our resolution here. Attorney Fees 

### Bailey requests fees under RAP 18.1 and WLAD, RCW49.60.030. "RCW 49.60.030(2) does not expressly authorize for attorney fees on review, but ithas been interpreted as authorizing such an award." Xieng v. People's Nat. BankofWashington. 120 Wn.2d 512, 533, 844 P.2d 389 (1993). RCW49.60.030(2) allows plaintiffs to sue

-22-No. 73365-6-1/23 

### underthe WLAD and "recoverthe actual damages sustained by the person, or both, together with the costof suit including reasonable attorneys' fees ..." Given our 

### resolution ofthe issues here, we deny Bailey's requestfor attorney fees. CONCLUSION 

### Forthe reasons discussed above, we affirm the trialcourt's orderdismissing Bailey's claims.

WE CONCUR:



# /*4*s>a t y« 

# ^sJ&g^

-23-