### FILED SEPTEMBER 13, 2016 In the Office ofthe Clerk ofCourt WA State CourtofAppeals, Division Ill

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE KIMMIKKELSEN, ) ) No. 33528-3-111 Appellant, ) ) 

### v. ) ) PUBLIC UTILITYDISTRICT# 1 OF ) OPINIONPUBLISHED INPART KITTITAS COUNTY, JOHNHANSON, ) PAUL ROGERS, and CHARLES WARD, ) ) Respondents. ) SIDDOWAY, J.

- KimMikkelsen appeals the summaryjudgmentdismissal ofher wrongful discharge and discriminatory discharge claims against the Kittitas County Public UtilityDistrict (PUD), its commissioners, and its former general manager, Charles Ward. Ms. Mikkelsen worked satisfactorily for 27 years, mostlyparttime, as thePUD's finance manager and as an interim general manager. But she does not dispute thatwithin the first year ofMr. Ward'stenure as general manager, she andhe ''justplain didn'tget along." Clerk'sPapers (CP) at 380.I 

# I I I 

# I No. 33528-3-111 Mikkelsen v. PUD#1 of Kittitas County
She persuades us that Washington should follow the majority offederal circuit courts and apply theMcDonnellDouglas 1burden-shifting approach to discrimination claims without requiring a dischargedplaintiffto demonstrate, as part ofherprima facie case, thather replacement came from outside herprotected class. Butit does not avail her, because she fails to meet herburden atthe third step oftheMcDonnellDouglas analysis. We address and affirm dismissal ofher discrimination claims in the published portion ofthis opinion. Inthe unpublished portion, we address the dismissal ofMs. Mikkelsen'sbreach of policy, negligent hiring and supervision, and intentional infliction ofemotional distress claims. Here again, a reasonable trier offact couldreach only one conclusion: her evidence is insufficient. We affirm the summaryjudgment dismissal ofall ofMs. Mikkelsen's claims.FACTS AND PROCEDURAL BACKGROUND Because we are reviewing the dismissal ofclaims on summaryjudgment, we view disputed evidence inthe light most favorable to Ms. Mikkelsen as the nonmoving party. The Kittitas County PUD, which provides electrical service to Kittitas County and
a small section ofYakima County, has approximately 15 employees. It is administered

1McDonnellDouglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). 2No. 33528-3-111 Mikkelsen v. PUD#1 of Kittitas County by a three-memberboard ofcommissioners. Day-to-day operations are the responsibility ofits general manager. Kim Mikkelsen was a part-time manager ofaccounting and finance for the PUD for 27 years. Thepart-time nature ofthe position enabled herto operate a private consulting business providing services to other utilities on financial, administrative, and accounting matters. Accordingto her, she would usually be at the PUD two or three days
a week, although there were some times when she would be gone for a full week and would make up the workthe next week. She was compensated on an hourly basis. In August 2009, afterthen-general manager MarkKjelland resigned, Ms. Mikkelsen was appointed as the PUD's interim general manager. Mr. Kjelland's resignation followed a whistleblower complaint against himthat was filed by four employees, one being Ms. Mikkelsen. Althoughthe board encouraged Ms. Mikkelsen to apply for the permanent general managerposition, she declined. During her roughly 10 months as interim general manager, Ms. Mikkelsenhelped organize the nationwide search for Mr. Kjelland's replacement. She researched potential executive search firms and recommended three to the board. The commissioners decided to engage Langley & Associates. The firm vetted between 50 and 60 applicants for the general managerposition, performing credential verification, reference, and background checks. It identified nearly 30 qualified candidates; from those, the board selected seven to personally interview, one being Mr. Ward. Mr. Ward had 29 years ofexperience in the 3No. 33528-3-111 Mikkelsen v. PUD #1 of Kittitas County
power industry and had previously been the manager ofengineering and operations for HighPlains Power in Riverton, Wyoming. High Plains gave Mr. Ward a favorable recommendation. According to Ms. Mikkelsen, she expressed concern to the boardbefore Mr. Ward
was offered the general managerposition abouthow many ofhis priorpositions had been short-term, including one from which he admitted being fired. The board nonetheless selected Mr. Ward for the general managerposition. It addressed the concernthat he changedjobstoo frequently by offering him a bonus shouldhe stay withthe PUD for at least five years. Also during hertime as interim general manager, Ms. Mikkelsen investigated otherutilities' progressive disciplinepolicies and developed a proposed "corrective action" policy for the PUD. Herproposal was the subject ofmeetings and discussion by the board, which adopted a corrective actionpolicy inNovember 2009. Atthe time Mr. Ward assumed the position ofgeneral manager, Ms. Mikkelsen had applied the policy once, giving a verbal warning to a union lineman. Mr. Ward also applied thepolicy once during his tenure, again giving a verbal warning to a union lineman. Mr. Ward assumed the positon ofgeneral manager on May 14, 2010, and Ms. Mikkelsen returned to herposition as finance manager. Initially Mr. Ward and Ms. Mikkelsen workedtogether withoutproblems. Harmonious relations did not last long, however. 4No. 33528-3-111 Mikkelsen v. PUD #1 of Kittitas County
In deposition testimony ofMs. Mikkelsen offered in connection with summary judgmentmotions in the trial court, she described the deterioration in theirrelationship: Q.
. .. You start out and you and Mr. Ward are workingpositively together. And so what happened from your perspective to the working relationship? A. Chuck's management style is such that he has to have someone-he calls it accountability. I call it blame. Becausehe doesn't want anything to come back on him. So he has to have somewhere to structure his blame. And it's an unfortunate thing. And it obviously isn'tworking. But I wasjustthe recipient of-andI think it's a patternthat will haunt him until he changes his behavior. CP at 110. Elsewhere, Ms. Mikkelsen described Mr. Ward's management style as "flash management," by which she meant he would execute decisions first and think aboutthem later. CP at 113. She also described his style as "termination and insubordination," adding, "There was a lot of'ations in his speechpatterns." CP at 109. She described herself, by contrast, as a "tell it like it is person," and her own management style as "team leader." CP at 131, 125. Mr. Ward initially made Ms. Mikkelsen the acting manager in his absence but changedthat around January 2011, rotating the assignment thereafter betweenMatt Boast and Brian Vosburgh, the two other members ofthe PUD's small managementteam. According to Ms. Mikkelsen, "[T]hat didn'tbother me. I didn'tparticularly want the position." CP at 132.

5No. 33528-3-111 Mikkelsen v. PUD #1 of Kittitas County By late March 2011, however, Ms. Mikkelsen had grievances she wanted to discuss with Mr. Ward. She requested a meeting. According to Ms. Mikkelsen, the subject ofthe March meeting was what she viewed as a "general communication breakdown." CP at 114.

Id. Q. So a general communicationbreakdown between you and 

### Mr. Ward? A. That's correct. Q. Did you think that was a mutual breakdown or was it his fault and you werejustfine? A. No, every communication breakdown is mutual. Q. And what about the communicationprocess between you and Mr. Ward did youthink needed workby both ofyou? A. I would have liked Chuckto not call me untrustworthy, especially in front ofmy contemporaries. I would have liked for Chuckto not speak overme and disregard anything I had said. I would have liked for Chuckto study things priorto making decisions that would impact me.
Ms. Mikkelsenprepared an outline ofissues she wished to cover that she took into her meeting with Mr. Ward on March 30. She made him a copy at his request. Two pages and aportion ofa third chronicle at least 10 complaints, including that Mr. Ward's behavior and communication with her were disrespectful; he engaged in passive/aggressive behavior; he made decisions without knowing the facts; he assigned duties without considering staffcapacity; he reacted belligerently when she suggested his approach to union negotiations would not be bargaining in good faith and was exposing the PUD to liability; he unfairly accused her ofbeing untrustworthy and taking "jabs;"

6

### No. 33528-3-111 Mikkelsen v. PUD #1 of Kittitas County
and he rejected her proposal for how to correct employee pay differential errors by prior management. CP at 

### 333-34. Hermemo concluded, "What do youpropose to correctthis behavior?" CP at 

### 335. Her only reference to gender or discrimination in the premeeting
memo was in connection with the reference to disrespectful behavior and communication "toward me, the only woman in a senior managementposition for the [PUD]." CP at 

### 333. Ms. Mikkelsen's notes made after the meeting indicate Mr. Ward denied treating her any differently than other staffmembers. He said he trusted her and "would have to start acting differently around [her]." CP at 

### 335. But she noted her disbeliefthat he "took ownership ofany genderbias or going around [her] to avoid ideas that may notbe in agreement with his." Id. By June 

### 2011, Ms. Mikkelsen was concerned enough about her and Mr. Ward's poorrelationship that she paidthe PUD for a cell phone it had issued to her the prior year, which she had sometimes used in connection with consulting engagements. She transferred the phone service contractto her name and planned to return the PUD's computer and printer she had at herhome. According to her notes, she was concerned that 

### Mr. Ward would "use [the phone] as a weapon against [her] in some manner," or
accuse her ofaccepting a "gift ofpublic funds." CP at 

### 336. She testified when deposed: A. My relationship with Chuckhad disintegrated substantially
.... 

### It was paranoia on my part. 

### Q. So by that point, you didn't trust Chuck; is that true? 

### 7No. 33528-3-111 Mikkelsen v. PUD #1 of Kittitas County
A. That's correct. CP at 123. Her notes indicate, "I
... am losing sleep worrying about my continued employment." CP at 336. PUD CommissionerJohn Hanson called Ms. Mikkelsen on July 24, 2011, and asked her how things were going at the PUD, telling her he "couldtell from the demeanor in the board room that something was wrong." CP at 83. According to Ms. Mikkelsen, she told Commissioner Hansonthat "all communication had pretty much ceased between Chuck and 

### I." CP at 85. She told the commissionerthatMr. Ward had been deprecating to her in staffmeetings and spoke over her ifshe offered an opinion. She told him that although she met with Mr. Ward to attempt to get him to discuss things, he discounted their conversations. She told CommissionerHanson she was afraid Mr. Ward had a general bias against her as his senior female staffmember. When CommissionerHanson asked what she would suggestthe board do about the situation, she suggested administering an employee survey, to be answered anonymously, to see ifother employees shared her concerns. Two weeks later, CommissionerHanson asked herto forward such a survey, which she did; he then asked her to forward it to the other commissioners along with a suggestion ofa special board meeting. On Monday, August 8, she e-mailed the proposed survey to the commissioners with the message, "Johnhas asked me to forward this survey for your review and a possible Special Board Meeting Thursday or Friday ofthis week." CP at 248. Atthe 8No. 33528-3-111 Mikkelsen v. PUD#1 of Kittitas County time, Mr. Ward was out oftown for his daughter's wedding and was not expected back until the following week. Ms. Mikkelsen did not provide Mr. Ward with a copy ofher e-mail orher proposed survey, even after Commissioner Roger Sparks responded to her e-mail, on the 8th, "Is this something Chuck is considering? Are the survey andthe special board meeting related? Ifso, I think we should wait until Chuckreturns from vacation." CP at 248. Ms. Mikkelsen's proposed survey contained 8 sections on different aspects ofan employee's work, pay and benefits. Six contained no more than 10 questions; some contained as few as 5 or 6. Two sections dwarfed the others: the sections on "Supervisor's Behavior," which contained 18 questions, andthe section onthe general manager, which contained 29. Amongthe questions aboutthe general managerwere, "Conflicts are caused in my organization by our not seeing common interests," "The General Manager is biased onthe basis ofgender," "The General Managerhandles authority effectively, not abusively," and "The General Managerkeeps informed on his/her employees' feelings." CP at 249-67. When deposed, Ms. Mikkelsen admitted Mr. Ward could perceive her suggestion ofthis anonymous survey as going around his back: Q. Weren't you concerned about
... sending this to the commissioners without [having] advis[ed your] general manager ... ?
9

### No. 33528-3-111 Mikkelsen v. PUD#1 of Kittitas County
A. Very concerned. Q. You would imagine that he would think you're going behind his back, wouldn't you? A. Which is why I suggestedQ. Answerthe question. Wouldn'tyou think that? A. With Chuck, the way Chuckthought, yes. CP at 96. Asked whether, atthis point, "[Y]ou and 

### Mr. Wardjustplain didn'tget along, isn'tthat true?" she answered, "Thatwould be a true statement." CP at 

### 380. On 

### Mr. Ward's return from vacation, he learned ofMs. Mikkelsen's e-mail and herproposed survey from Commissioner Sparks. He didview it as going behindhis back. He also viewed it as the "last straw," explaining, "She'sundermining my authority. She's obviously outto get me and make the PUD look bad." CP at 

### 152. Aware ofMs. Mikkelsen's involvement in forcing Mr. Kjelland to resign, he felt the purpose ofher proposed survey was to have him removed as general manager. After consulting with the three commissioners, he acted on his decision to terminate Ms. Mikkelsen's employment. OnAugust 

### 22, 2011, Mr. Ward called Ms. Mikkelsen in for a meeting. Reading from a script, he toldher, "[I]t's not working out," and thather employmentwas terminated. CP at 

### 319. When she asked what "it" was, he refused to elaborate, sticking to his script. Ms. Mikkelsen asked for a copy ofherpersonnel file before leaving the workplace. It contained no record ofwarnings or discipline. In responding to the Employment Security Department's inquiry after Ms. Mikkelsen applied for unemploymentbenefits, the PUD responded that she "was an 'atwill' employee
... 

### 10

# l

No. 33528-3-111 Mikkelsen v. PUD #1 of Kittitas County
terminated without cause." CP at 402. Ms. Mikkelsen was 57 years old at the time she
was fired. AfterMs. Mikkelsen's termination, Genine Pratt, a certified public accountant,
was hired on a contract basis to perform Ms. Mikkelsen's former responsibilities. She
was offered and accepted Ms. Mikkelsen's former position after eight months. Ms. Pratt
was 51 years old at the time ofhire. Ms. Mikkelsen filed suit against the PUD, its commissioners, and Mr. Ward on November 8, 2011. The PUD terminated Mr. Ward's employment on December 31, 2011. Ms. Mikkelsen ultimately alleged she was discharged in violation ofthe corrective action policy and that sex and age discrimination were substantial factors in her termination. She also alleged that the PUD negligently hired and supervised Mr. Ward, and that the defendants had intentionally inflicted emotional distress on her. Asked in discovery about evidence ofdiscrimination, she citedherbeliefthat Mr. Wardtreated her differently than he treated the two male members ofthe PUD's managementteam. She also cited the facts thatMr. Ward (1) stated once in a union meeting that "ifthe board wouldbuy him uniforms, he'dbe happy to wearthemjust so long as they weren'tpink;" (2) referred to the outside crew as "the crew" but referred to the office staff(all women) as "the ladies orthe girls;" (3) would, upon entering her

11No. 33528-3-111 Mikkelsen v. PUD#1 of Kittitas County office, "reach into his pockets and rearrange his genitals" before taking a seat; and finally (4) stated on the day he fired her, "Now, don'tyou make a scene." CP at 86-88. As evidence ofage discrimination, Ms. Mikkelsen stated Mr. Ward had described
a long-term employee as "old and stale" and that he had a fixation on the age ofa 72- year-old staffmember. CP at 90. Ms. Mikkelsen acknowledges that at no time before filing suit did she notify Mr. Ward orthe PUD commissioners that she was offended by Mr. Ward's references to "ladies," "old and stale" employees or his stated unwillingness to wear a pinkuniform. She never said anything to Mr. Ward about her objections to his practice ofputtinghis hands in his pockets when he sat dowh in her office. Following the conduct ofdiscovery, all defendants moved for summaryjudgment
as to all claims. The trial court granted their motions and dismissed the complaint. Ms. Mikkelsen appeals. ANALYSIS Ms. Mikkelsen appeals dismissal ofeach ofher four claims. When reviewing a grant ofsummaryjudgment, we engage in the same inquiry as the trial court. Marincovich v. Tarabochia, 114 Wn.2d 271, 274, 787 P.2d 562 (1990). Summaryjudgmentis appropriate if"there is no genuine issue as to any material fact and

... the moving party is entitledto ajudgment as a matter oflaw." CR56(c). "The court must considerthe facts in the light most favorable to the nonmoving party, and the 12

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# I I No. 33528-3-III Mikkelsen v. PUD #1 of Kittitas County
motion should be granted only if, from all the evidence, reasonable persons could reach but one conclusion." Marincovich, 114 Wn.2d at 274. We may affirm summary judgment dismissal ofa claim on any basis supported by the record. LaMon v. Butler,

112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989). We first address dismissal ofMs. Mikkelsen's discrimination claims and then turn to the others in the orderpresented in Ms. Mikkelsen's amended complaint. 2 

### I. Discriminatorydischarge Ms. Mikkelsen claims that in discharging her, Mr. Ward discriminated based on her sex and age. Under the Washington Law Against Discrimination (WLAD), ch. 49.60 RCW, "[i]t is an unfair practice for any employer
... [t]o discharge
... any person from employmentbecause ofage, [or] sex." RCW 49.60.180(2). Ms. Mikkelsen admits to having no direct evidence that 

### Mr. Ward intentionally discriminated against her on the basis ofsex or age, but she argues that she presented evidence sufficientto survive summaryjudgmentunder the indirect, burden-shifting framework articulated by the United States Supreme Court in McDonnellDouglas and adopted by Washington courts in, e.g., Grimwoodv. Univ. of PugetSound, Inc., 110 Wn.2d 355, 362, 753 P.2d 517 (1988).

2 Mr. Ward claims individual immunity from certain ofMs. Mikkelsen's claims under RCW 54.12.110, and that he cannot be liable for the asserted breach ofa PUD contract. Because we affirm the dismissal ofall claims on the merits we need not reach his additional, individual defenses. 13No. 33528-3-111 Mikkelsen v. PUD #1 of Kittitas County
Under the three-step McDonnellDouglas analysis, a plaintiffbears the initial burden ofestablishing aprima facie case ofdiscrimination, thereby creating a presumption ofdiscrimination. Scrivener v. Clark Coll., 181 Wn.2d 439,446,334 P.3d 541 (2014). Ifthe plaintiffpresents a prima facie case, the burden ofproduction shifts to the employerto articulate a legitimate, nondiscriminatory reason for the adverse employment action. Scrivener, 181 Wn.2d at 446. Ifthe defendant meets this burden, the plaintiffmustproduce evidence sufficientto create a genuine issue ofmaterial fact either (1) that the employer's reason is pretextual or (2) that although the stated reason is legitimate, "discrimination nevertheless was a substantial factor motivating the employer." Id. at 446-47. "Ifthe plaintiffsatisfies the McDonnellDouglas burden of production requirements, the case proceeds to trial, unless thejudge determines that no rational fact finder could conclude that the action was discriminatory." Id. at 446. The trial court dismissed Ms. Mikkelsen's discrimination claims relying on Washington cases stating that aprima facie case ofdiscriminatory discharge is established by showing thatthe employee (1) was within a statutorily protected group; (2)
was discharged by the defendant; (3) was doing satisfactory work; and (4) was replaced by someone outside the protected group-or, in the case ofage discrimination, by
someone "significantly younger." Hill v. BCTIIncome Fund-I, 144 Wn.2d 172, 188, 23 P.3d 440 (2001) (age discrimination); Domingo v. BoeingEmpls. Credit Union, 124 Wn. App. 71, 80, 98 P.3d 1222 (2004) (sex discrimination). 

### It is undisputed that Ms. 14No. 33528-3-111 Mikkelsen v. PUD #1 of Kittitas County
Mikkelsen was replaced by a woman only six years younger than she was when discharged. Ms. Mikkelsen admits she cannot prove replacementby someone outside her protected class but argues thatMcDonnellDouglas and other decisions ofthe United States Supreme Court do not supportthat fourth, replacement element. After reviewing federal cases, we are persuaded that she is correct. We believe our own Supreme Court, which adopted the replacement elementbefore it was critically examinedby federal courts, would agree. McDonnellDouglas was a failure-to-hire case, not a case complaining ofa discriminatory discharge. It described a complainant's initial burden ofestablishing a prima facie case ofracial discrimination as showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for ajob for which the employerwas seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, thepositionremainedopen andthe employer continuedto seekapplicants frompersons of complainant's qualifications. 411 U.S. at 802 (emphasis added). Itadded, by footnote, "The facts necessarily will vary in Title VII cases, and the specification above ofthe prima facie proofrequired from respondent is not necessarily applicable in every respect to differing factual situations." Id. at n.13. In Texas Departmentof CommunityAffairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981), the Supreme Court elaborated on the plaintiffs 15No. 33528-3-III Mikkelsen v. PUD #1 of Kittitas County
ultimate and intermediateburdens, observing thatthe ultimate burden ofproving intentional discrimination "remains at all times withthe plaintiff." 

### It described the intermediate evidentiary burdens as bringing the litigants and the court "expeditiously and fairly to this ultimate question." Id. Importantly, it observedthat "[t]heburden ofestablishing a prima facie case of disparate treatment is not onerous," yet it serves an "important function" of "eliminat[ing] the most commonnondiscriminatory reasons for the plaintiffs rejection." Id. at 253-54. As articulated inMcDonnellDouglas, 411 U.S. at 802, the second element ofthe prima facie case-thatthe plaintiff"applied and was qualified for ajob for which the employerwas seeking applicants"--eliminates cases where the employerhas no employmentvacancy and cases where an applicant lacks the qualifications sought in an employee. The fourth element-"that, afterhis rejection, the positionremained open and the employer continued to seek applicants from persons ofcomplainant's qualifications" --eliminates cases where the employer changes its mind either aboutthe qualifications sought (ruling outthe plaintiffas a candidate) or about whetherto fill a vacancy at all. Theprima facie case as articulated inMcDonnellDouglas does notrequire the complainant in a failure-to-hire case to showthatthe personhired to replace him was from outside his protected class. As federal courts translatedthe elements ofa prima facie failure-to-hire case from McDonnellDouglas to a discriminatory discharge case, at least sometranslated its fourth 16No. 33528-3-111 Mikkelsen v. PUD #1 of Kittitas County
element as proofthat the plaintiffwas replaced with someone outside the protected class. We have not attempted to trace that federal history, but can trace Washington's adoption ofthe replacement elementto Roberts v. AtlanticRichfieldCo., 88 Wn.2d 887, 568 P.2d 764 (1977), in which age discrimination under the WLAD was alleged. Noting that "[

w]e have not had occasionto delineate the evidence necessary to establish a prima facie case," the court relied on a Fifth Circuit case to hold that aprima facie case ofage discrimination is established by showing that a plaintiff"'was within aprotected class,
was asked to take early retirement against his will, was doing apparently satisfactory work, and was replaced by a youngerperson ....'" Id. at 892 (quoting Wilson v. Sea/testFoods Div. of Kraflco Corp., 501 F.2d 84, 86 (5th Cir. 1974)). Nine years later, relying onRoberts, our Supreme Court affirmed dismissal ofa plaintiff's age discrimination case because he failed to establish as part ofhis prima facie
case that he was replaced by someone outside the age group protected by the WLAD. Brady v. Daily World, 105 Wn.2d 770, 777, 718 P.2d 785 (1986). The employee in Brady did not challenge the replacement element. Two years thereafter, in Grimwood, our Supreme Court cast mild doubt on the replacement element when it pointedto the First Circuit Court ofAppeals' disagreement with replacement as an element ofa prima facie case, stating "InLoeb [ v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979)], the court ...points outthat the element ofreplacement by a younger person or a person outside the protected age group is notabsolute; rather, 17No. 33528-3-111 

### Mikkelsen v. PUD #1 of Kittitas County
the proofrequired is thatthe employer 'sought a replacement with qualifications similar to his own, thus demonstrating a continued need for the same services and skills.'" 11O Wn.2d at 363 (emphasis added) (quoting

### Loeb, 600 F.2d at 1013). By saying the replacement element "is not absolute" rather than that it is not an element, the Supreme Court invited its continued application. 3 Following

### Roberts, Brady, and 

### Grimwood, Washington courts have for the most part included the replacement element in applyingthe

### McDonnellDouglas framework to discriminatory discharge cases. No Washington case has examined its growing rejection by federal courts. The United States Supreme Courthas not squarely addressedwhetherreplacement by an employee outside the protected class is an appropriate element ofa prima facie case in applying the

### McDonnellDouglas framework, buttwo ofits decisions are cited as suggesting the high court's disapproval ofthe element. 

### St. Mary's Honor Center v.

3 The language "is not absolute" may understate

### Loeb's rejection ofthe replacement element. What

### Loeb says is that "[t]heprima facie case described in 

### McDonnellDouglas did not include proofthat some person outside theprotected class was hired in complainant'splace." 600 F.2d at 1013. Elsewhere it states: A correct statement ofthe elements ofa 

### McDonnellDouglas prima facie case, adapted to present circumstances, therefore would have been that Loeb hadto prove that he was in the protected age group, thathe was performing hisjob at a level that met his employer's legitimate expectations, thathe nevertheless was fired, andthat [his employer] sought someone to perform the same work afterhe left. 600 F.2d at 1013-14. 18No. 33528-3-III Mikkelsen v. PUD #1 of Kittitas County Hicks, 509 U.S. 502, 506-08, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993) involved the outcome ofa bench trial, and among the district court's findings recounted by the Court (although notrelevant to the issue on appeal) was its finding that the plaintiff, a black man, established a prima facie case ofdiscriminatory discharge by demonstrating among other elements that he was replaced by a man who was white. The four-member dissent tookpains to point out in a footnote: The majority, following the courts below, mentions that Hicks's position was filled by a white male. Ante, at 506 (citing the District Court's opinion); see 970 F.2d 487,491, n. 7 (CA8 1992). This Courthas not directly addressed the question whetherthe personal characteristics of someone chosento replace a Title VII plaintiffare material, and that issue is not before us today. Cf. Cumpiano v. Banco SantanderPuerto Rico, 902 F. 2d 148, 154-155 (CAI 1990) (identity ofreplacement is not relevant). Id. at 527 n.1. Several years later, the Supreme Courtheld that the fact that a discharged employee suing underthe Age Discrimination in EmploymentAct (29 U.S.C. § 623 (a)(l)) was replaced by someone outside the protected class was not a proper element of theMcDonnellDouglas prima facie case. 0 'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 116 S. Ct. 1307, 134 L. Ed. 2d433 (1996). The decision may not be as consequential for presentpurposes as it sounds, because Justice Scalia's opinion for the unanimous court allowed that "the fact that a replacement is substantiallyyounger than the plaintiff'would be an indicator ofage discrimination, but "the fact that the plaintiff
was replaced by someone outside theprotected [40years or older] class"was not. Id. at 19No. 33528-3-111 Mikkelsen v. PUD #1 of Kittitas County
313 (emphasis added). Explaining that "there mustbe at least a logical connection between each element ofthe prima facie case and the illegal discrimination for which it establishes a '
...presumption,'" the opinion stated that an element of"replacementby
someone under 40 fails this requirement." 

### Id. at 311-12 (quoting Burdine, 450 U.S. at 254 n.7). Some courts, including our Supreme Court in Hill, concludedthat O'Connor merely requires modifying the replacement element ofthe prima facie age discriminatory discharge case to require a showing ofreplacement by a "significantly younger" employee rather than by an employee "outside the [over-40 class]." 144 Wn.2d at 188 & n.10. But some federal circuit courts read more into Justice Scalia's statement elsewhere in the opinion that, "The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age." 517 U.S. at 312. They construe that statement as recognizing that in any discrimination case aplaintiffcan be the victim ofdiscrimination and at the same time "lose out" to someone in his or her ownprotected class. E.g., Carson v. Bethlehem Steel Co., 82 F.3d 157, 158 (7th Cir. 1996); Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 354-55 (3d Cir. 1999). Given this history, the overwhelming majority offederal circuit courts that have examined the issue have concluded that a discharged employee should not have to demonstrate that she was replaced with someone outside ofherprotected class as part of 20No. 33528-3-111 

### Mikkelsen v. PUD #1 of Kittitas County
the

### McDonnellDouglasprima facie case. Almost all ofthem did so after our Supreme Court's decisions in 

### Roberts (1977), 

### Brady (1986), and 

### Grimwood(1988). 

### See Cumpiano, 902 F.2d at 154-55 (a First Circuit decision); 

### Meiri v. Dacon, 759 F.2d 989, 995-96 (2d Cir. 1985); 

### Pivirotto, 191 F.3d 344 (Third Circuit);

### Nieto v. L&HPacking Co., 108 F.3d 621 (5th Cir. 1997); 

### Jackson v. Richards Med. Co., 961 F.2d 575,587 n.12 (6th Cir. 1992); 

### Carson, 82 F.3d 157 (Seventh Circuit); 

### Walker v. St. Anthony'sMed. Ctr., 881 F.2d 554, 558 (8th Cir. 1989); 

### Perry v. Woodward, 199 F.3d 1126 (10th Cir. 1999); 

### Howardv. RoadwayExpress, Inc., 726 F.2d 1529, 1534 (11th Cir. 1984). 

### See also John v. Calderon, 1996 WL 557658 (N.D. Cal. 1996). Some ofthe circuit courts have eliminatedthe replacement element altogether, some have said that it need not always be applied, and the position ofsome appears to lie somewhere in between.4 The Tenth Circuit Court ofAppeals was the last ofthe foregoing decisions, reviewed the others, and elected to eliminate the element altogether. We find its reasoning persuasive. As it observed, those courts that have not 

### eliminatedthe elementbut also do not 

### require it-require a plaintiffto substitute "some additional fact from which an inference ofdiscrimination can arise" but without "giv[ing] any examples of

4 An annotation seeks to sort outthe rationales, although it includes the positions ofsome ofthe courts in all three categories. Eric C. Suette, Annotation, 

### Requirementof Replacement byNonprotectedIndividual To Establish Prima Facie Employment Discrimination under 42 US.CA.§ 1981, Title VIIof the CivilRightsAct (42 US.CA.§ 2000e-(a)(l)) andAmericans with DisabilitiesAct (42 US.CA.§ 12112(a)), 172 A.LR. FED. 465 (2001). 21No. 33528-3-111 Mikkelsen v. PUD#1 of Kittitas County
what evidence would be sufficient to give rise to such an inference[,]
...result[ing] in too much uncertainty for the district courts and the parties." Perry, 199 F.3d at 1139. Elsewhere, it explained: Supreme Courtprecedent fully supports [the] conclusion that the termination ofa qualified minority employee raises the rebuttable inference ofdiscrimination in every case in which the position is not eliminated
.... The employerhas the opportunity to dispel the inference by articulating a legitimate, non-discriminatory reason for terminating the employee. In meritless cases, the plaintiffwill be unable to show that the employer's articulated reason is pretextual, and summaryjudgmentwill then be entered for the defendant. 

### Id. at 1140. Having reviewed Washington decisions applying the WLAD, we find no reason why we should reject the majority federal viewthat replacement is not an essential element ofthe prima facie case, and we find a good reason for embracing it. In several cases, Washington courts have excusedplaintiffs from demonstrating the fourth element
on ad hoc rationales. In Hatfieldv. Columbia Federal Savings Bank, 57 Wn. App. 876, 790 P.2d 1258 (1990), overruledon othergrounds byBurnside v. Simpson Paper Co., 123 Wn.2d 93, 864 P.2d 937 (1994), a decision ofthis court, there were disputed facts
overwhether the discharged employee was replaced, and ifso, by whom. Relying on the statement in Grimwoodthat it did not intend the four elements identified in Roberts to be "'rigid, mechanized, or ritualistic,' orthe exclusive method ofproving a claim," the court excusedproofofthe replacement element, citing a treatise's suggestion that the element
22No. 33528-3-III Mikkelsen v. PUD#1 of Kittitas County
could be dispensed with "'in cases where the plaintiffhas introduced direct or circumstantial evidence ofdiscriminatory intent.'" Id. at 882 (quoting Grimwood, 11O Wn.2d at 363 and B. SCHLEI & P. GROSSMAN, EMPLOYMENT DISCRIMINATION LAW 498-99 (2d ed. 1983). In Callahan v. Walla Walla HousingAuthority, 126 Wn. App. 812, 110 P.3d 782 (2005), this courtrefusedto apply the replacement element in a disability discrimination case, explaining: Replacementby a person outside the protected class is relevant when one member ofthe class is much like another. But disabilities differ widely. Replacing a plaintiffwho has a burdensome disability with a person less inconveniently disabled does not eliminate the possibility thatthe disability was a substantial factor. Id. at 820 & n.1. Allowingtrial courts to require or dispense withthe replacement element any time they believe it to be "rigid, mechanized, or ritualistic" in a given case is no guidance at all. Like the Tenth Circuit in Perry, webelieve thatthe current State ofWashington law results in too much uncertainty for trial courts andparties. Where a discharged employee is replaced by someone within the protected class, it will notbe overlooked in theMcDonnellDouglas analysis. It is relevant evidence, helpful to the employer, that will bear onthe step three determination ofwhether a plaintiffclaiming discrimination has established thatthe employer's proffered reason was

23**~**

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### Mikkelsen v. PUD #1 of Kittitas County pretext or that discrimination was a substantially motivating factor in the employment decision. Absent a holding on this issue by our Supreme Court, we adopt this refinement of the 

### McDonnellDouglas framework by the federal courts for the same reason Washington courts found it helpful to adoptthat framework in the first place. 

### Application to this case Since we have excused Ms. Mikkelsen from demonstrating the fourth element of the prima facie case, she satisfies the first step ofthe 

### McDonnellDouglas analysis. The burden ofproduction shifts to the PUD to show that it had a legitimate, nondiscriminatory
reason for terminating her employment. 

### Scrivener, 181 Wn.2d at 446. 

### It states thatMs. Mikkelsen was discharged because "'itjustwasn'tworking out,'" and "[a]fter a complete and mutual communication breakdown, [Mr. Ward and Ms. Mikkelsen] lost trust in one another and it became clearthatthey could no longerwork together." Br. ofResp'tPUD at 1. This satisfies the defense burden ofarticulating a legitimate, nondiscriminatory
reason for the firing. 

### CfBriggs v. Nova Services, 166 Wn.2d 794, 805, 213 P.3d 910 (2009) (corporate board behaved reasonably when it empowered its executive director to terminate the employment ofother managers who complained about herperformance and
were unable to work with her). With the defense burden ofproduction satisfied, the presumption established by the prima facie case "drops out ofthe picture." 

### Hicks, 509 U.S. at 510-11. The burden 24

### No. 33528-3-111 Mikkelsen v. PUD #1 of Kittitas County


### shifts back to Ms. Mikkelsento show that the PUD'sreason is pretextual orthat discrimination nevertheless was a substantial factor motivating the employer. Undisputed evidence, including much ofMs. Mikkelsen's own testimony, established that her and Mr. Ward's conflicting management styles led to a "general communication breakdown" that was both logically and temporally related to Mr. Ward's decision to discharge her. Ms. Mikkelsen nonetheless attempts to show pretext by getting into the weeds ofthe specific conflicts she had with Mr. Ward over the 15 months they worked together and arguing that she, not he, was right-or at least there is a dispute. Butit is the defendants who get to articulate the reason for her discharge, not Ms. Mikkelsen, and it relies on the overarching discord and loss oftrust in a small management team-the fact that "itjustwasn'tworking out," as she admits being told when she was fired and as she alleged in her amended complaint.5 

### She cannot show that the PUD's reason was pretextual because her own testimony supports it.

5 

### We do not find the defendants to have been inconsistent about the reason for termination, either. Mr. Ward admitted the allegation of13.8 ofMs. Mikkelsen's amended complaintthat "[t]he reason offered tojustifythe termination was that'
... it wasjustnot working out.'" CP at 9. Ms. Mikkelsen now focuses on a memorandum that Mr. Ward preparedto documenttheir history and moves directly to its historical detail, but she skips over the first paragraph, which summarizes his reasons for the termination. The first paragraph ofMr. Ward's memo is entirely consistent with the defendants' position that the termination was because ofthe management discord. See 

### CP at 242 ("Kim's actions and attitude toward me ... is a disruption to the workplace," "It

### is getting worse and it will not get any better," "Sheundermines my authority," "I am unable to trust her anymore," "Withoutthis trust, I am unable to perform my function as the General Manager as I should be able to."). In explainingthe termination, it has not 25No. 33528-3-111 Mikkelsen v. PUD #1 of Kittitas County
Whatremains is whether she can showthat discrimination nevertheless was a substantial motivating factor. An employer is entitled to summaryjudgmentat this stage "ifthe plaintiffcreated only a weak issue offact as to whetherthe employer's reason was untrue and there was abundant anduncontroverted independent evidence that no discrimination occurred." [ (quoting Reeves v. Sanderson PlumbingProds., 530 U.S. 133, 148, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000))]. Whether summaryjudgmentis appropriate in any particular case depends on a variety offactors, including "the strength of the prima facie case, theprobative value ofthe proofthat the employer's explanation is false and any other evidence that supports the employer's case and thatproperly may be considered."Id. Prattv. City of Houston, 247 F.3d 601,606 (5th Cir. 2001);6 accordHill, 144 Wn.2d at 184-85. At step three ofthe McDonnellDouglas framework, Ms. Mikkelsen faces the uncontroverted evidencethatthe PUDreplaced her with a 51-year-old woman, undercutting any inference that her sex or age were motivating factors in hertermination. She confronts the fact that her own testimony provides strong support for the legitimate, nondiscriminatory reason offered by the PUD for her discharge. Againstthis strong evidence that no discrimination occurred, Ms. Mikkelsen offers only speculation and

been inconsistent for Mr. Ward to talk about the history leading up to the management friction as well. 6Prattpoints outthat althoughReeves was based on a motion forjudgmentas a matter oflaw, the summaryjudgment standard is the same. Pratt, 247 F.3d at 606 n.3. 26No. 33528-3-III Mikkelsen v. PUD#1 of Kittitas County
evidence from which no discriminatory animus can reasonably be inferred. Ms. Mikkelsen's subjective beliefthat Mr. Wardterminated herbecause ofher sex cannot be the basis forjudicialrelief. Hornsby v. Conoco, Inc., 777 F.2d 243, 247 (5th Cir. 1985). Nor can speculation about a defendant's motivation. Barker v. Advanced Silicon Materials, LLC, 131 Wn. App. 616, 624, 128 P.3d 633 (2006); Hines v. ToddPac. Shipyards Corp., 127 Wn. App. 356, 372, 112 P.3d 522 (2005). Even accepting her testimony that Mr. Ward treated her differently from the two male members ofthe management team, differing treatment could be explained by Mr. Ward's and her conflicting management styles, growing pattern ofdisagreements, or even because unlike the other members ofthe team, she was a part-time employee. Lacking any evidence that Mr. Ward treated any other female employees differently from men, or any statement by him denigrating female workers or managers, it is sheer speculation onherpartthathe treated her differently because she was a woman.7 Evidence ofreferences to women as "ladies" or "girls" can be "ambiguous at best and
... not reveal any hostility or animus toward women." Creech v. Ohio Cas. Ins. Co., 944 F. Supp. 1347, 1358 (S.D. Ohio 1996); accord Caldwell v. ServiceMaster Corp., 966 F. Supp. 33, 50 (D.D.C. 1997) (the words "gal" and "girl" were not reasonably construed

7 Ms. Mikkelsentestified when deposed thatBrian Vosburgh once saidto her, speaking ofMr. Ward, that "he's got a guy/girl thing with you." CP at 87. She offered no testimony ofMr. Vosburgh in opposing summaryjudgment. Her inadmissible testimony is useless on the issue. 27No. 33528-3-111 Mikkelsen 

### v. PUD#1 of Kittitas County by the plaintiffs as sexually demeaning); Wilcoxon v. Minn. Mining & Mfg. Co., 235 Mich. App. 347,368, 597 N.W.2d 250 (1999) (fact that manager referred to office workers as "girls," even ifthey were olderthan him, could have nothing to do withracial
or sexual animus); Hadeedv. Abraham, 265 F. Supp. 2d 614, 622 (E.D. Va. 2003), ajf'd, 103 F. App'x706 (4th Cir. 2004) (defendants' reference to two female prospective home purchasers as "girls" may be distasteful, but it does not rise to the level ofunlawful discrimination). Ms. Mikkelsen does not demonstrate why we should regard Mr. Ward's
use ofthe terms "ladies" or "girls" as being anything more than outdated. She even admitted when deposed, "I don'tknow that it was inappropriate" to refer to the all-female office staffas "ladies," but 

### "Ijustthought it would be more appropriate to referto them in something otherthan a gender specific role." CP at 87. We also do not understand why Mr. Ward's stated unwillingness to wear apink uniform is characterized by Ms. Mikkelsen as a discriminatory remark. We understand that pink remains a color associated with women, reinforced through current breast
cancer awareness campaigns, and that the implication is that Mr. Ward didn'twant to
wear whathe viewed as a feminine color-orwas at leastjokingthathe didn't. Whatwe don'tunderstand is why thatreveals hostility or animus toward women. When asked in deposition what she found inappropriate about the statement, Ms. Mikkelsen answered, unenlighteningly, "Chuckhad aproblem with women in general." CP at 86.

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### As to Mr. Ward's statement about her not making a scene after being fired, the defense submissions supporting summaryjudgment include an August 26 file memorandum by Mr. Ward on howMs. Mikkelsen's termination was handled, in which he admits making the statement and describes how and when it occurred. CP at 398. His memorandum stated in part: Afterthe meeting Kim went to her office. The first thing she told Nickie was I havejustbeen fired. I heard Kim say that and asked herto please not make a scene. Kim said she would not. CP at 399. We have been directed to nowhere in the record that Ms. Mikkelsen disagrees with that account. When asked in deposition why she felt Mr. Ward's statement about making a scene was inappropriate, she answered only, 

### "I rather doubt he would have said something like that to my male contemporaries." CP at 88. Her only evidence ofageist comments during her 15 months ofworking with Mr. Ward was offered in deposition after being asked, "[W]as there ever a statement made to you that supports your contention that you were terminated because ofyour age?" She answered yes, and recounted a statement Mr. Ward had made about an employee being "old and stale" that she found offensive: Q. 

### Did Mr. Ward identify who he was talking about? A. Gerard. Q. 

### Andhow old was Gerard at the time ofthis statement? A. He was in his 50s, late 50s, when he retired, I 

### think. Q. 

### And so what exactly do you recall Mr. Ward saying about Mr. Gerard?
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A. I can't say exactly. I canjust say that Gerard had worked there for a lot ofyears and he made a commentthat hejust-it'sjust amazing that he could only work for one employer in all those years. Q. So what does that have to do with age? A. In orderto work all those years, you gotto be old. Q. So any other statement ...by Mr. Wardthatyou feel support[s] your contentionthatyou were fired because ofyour age. A. That's it. IfI have others, I am-I don'trecall them right now. CP at 89-91. She did notrecall others during her deposition. She did testify thatMr. Ward had a "fixation" on the age of72-year-old PUD employee Nickie Buchanan, explaining that Ms. Buchanantold herMr. Ward seemedto be very focused on her age. Id. at 90. Notestimony ofMs. Buchanan was offered in opposition to summary judgment. Not only do we find these remarks, occurring over a 15-monthperiod, to be unpersuasive evidence ofa discriminatory attitude on Mr. Ward's part, butthere is no evidence that any employee ever found them objectionable enough to raise them under the PUD's sexual harassmentpolicy. As Ms. Mikkelsen's materials point out, the PUD's then 20-year-oldpolicy stated, "Prompt action shall be taken when a question or situation is brought to the attention ofthe appropriate person." CP at 558. Last is Ms. Mikkelson's claimthat when Mr. Ward came into her office, "priorto his taking a seat, he would reach into his pockets and rearrange his genitals." CP at 88. As far as we cantell from the record, the first time this was broughtto the attention of anyone at the PUD was when Ms. Mikkelsen was deposed on June 19, 2014. It was not
30

### No. 33528-3-111 Mikkelsen v. PUD #1 of Kittitas County
reflected in the memorandum and notes ofcomplaints she maintained during her employment. She admits she neverraised it with Mr. Ward. When deposed, she claimed reluctance to raise it ("I had not wanted to say this, but I'm going to have to.... I find it offensive that I even have to say that."). CP at 

### 88. Whetherbecause ofher stated reluctance or for some otherreason, none ofthe lawyers asked her for more specific information or detail. Absent information from which to determine whether any reasonable person in Ms. Mikkelsen's position would have viewed Mr. Ward's conduct
as evidence ofmisogyny or as simply a man hopingto sit without discomfort, we cannot treat it as evidence ofa discriminatory animus. The evidence ofdiscrimination Ms. Mikkelsen offers is insufficientto permit a rational finder offact to inferthat the termination ofher employmentby Mr. Ward was
more likely than not substantially motivated by discrimination. Affirmed. A majority ofthe panel having determined that only the foregoing portion ofthis opinion will be printed in the Washington Appellate Reports and that the remainder having no precedential value shall be filed for public record pursuantto RCW 2.06.040, it is so ordered. II. Breach of policy Ms. Mikkelsen next contends her discharge withoutnotice orprogressive discipline violated the corrective action policy adoptedbythe PUD commissioners in 

### 31No. 33528-3-III Mikkelsen v. PUD #1 of Kittitas County
November 2009. While an employment contract indefinite in duration is ordinarily terminable at will in Washington, she relies on two exceptions to the rule that our Supreme Court first recognized in Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 233, 685 P.2d 1081 (1984). The first exception is based on contractual modification. The second is based onpromises ofspecific treatment in specific situations, onwhich an employeejustifiablyrelies. Contract modification theory of enforceability Underthe first exception, an employer's issuance ofa manual orpolicy may modify an employment contractwhere "therequisites ofcontract formation, offer, acceptance and consideration" establishthatthe new manual orpolicy has becomepart of
a modified employment contract. Id. at 228. Focusing onthe elements ofcontract formation and breach are key to avoiding confusion between Thompson's contract modification andjustifiable reliance theories for enforcing employerpolicies. DePhillips
v. Zolt Constr. Co., 136 Wn.2d 26, 35-36 & n.5, 959 P.2d 1104 (1998). "The difference is clear whenthe elements ofthe causes ofaction are compared." Id. at 36. "To establish a modification, the party asserting the modification must show, through the [words] [or] [conduct] ofthe parties, that there was an agreement ofthe parties on all essential terms ofthe contract modification, and thatthe parties intendedthe
new terms to alter the contract." See 6A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 301.07, at 212 (6th ed. 2012) (WPI); Swanson V. 32

# I f 1 

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or a mutual change in obligations and rights. Dragtv. Dragt/DeTray, LLC, 139 Wn. App. 560, 576, 161 P.3d 473 (2007); WPI 301.07, cmt. ButcfRESTATEMENT (SECOND) OF CONTRACTS § 89 (AM. LA

### w INST. 1981) (identifying when modification ofexecutory contracts may be bindingwithout consideration). In Swanson, contract modification was established where the employerprepared a memorandum ofworking conditions to quell employee dissent and discussed it extensively with affected employees over a period oftwo days. 118 Wn.2d at 515-16. The promise was "specific enough to constitute an enforceable contractterm" and the employer "almost certainly offeredthe Memorandum in consideration for the employees' promise notto unionize andthe employees almost certainly accepted it in consideration for the forgoing oftheir legal right to unionize." Id. at 524. Althoughthe question ofwhether an employerhas made a contract offer is a question offact, "ifreasonable minds cannot differ as to whether language sufficiently constitutes an offer
... as a matter oflaw the claimed promise cannotbepart ofthe employmentrelationship." Id. at 522. A claim that an employerhas made a contract offer can fail as a matter oflaw when it is directly negatedby other communications by the employer, as illustrated by 33

### No. 33528-3-III Mikkelsen v. PUD #1 of Kittitas County
Kuest v. RegentAssistedLiving, Inc., 

### 111 Wn. App. 36, 51, 43 P.3d 23 (2002). InKuest,


### an express disclaimer in the employee's original employment contract statedthat her employment was at will and that the employer'spolicies did not constitute a contract. She was thereafter given a supervisor's manual containing a progressive discipline policy and was instructed to use it; at about the same time she received an employee manual that repeated the disclaimer included in her contract. Although she argued that the progressive disciplinary policy and instructions to use it modified her at-will employment, the court held-based on the disclaimer and the absence ofconsiderationthat "[m]aterial facts are not at issue regarding all the required elements ofcontract formation" and that the trial court properly dismissed the claim. Id. 

### In this case, a number ofprovisions ofthe corrective action policy negate any possibility that by adopting and publishing it, the PUD's commissioners were offering to modify the at-will nature ofMs. Mikkelsen's employment. Forpresentpurposes, one provision ofthe policy is sufficientto dispel that argument: The rules set outhere are intended only as guidelines, and do not give any employee a rightto continued employment or any particular level of corrective action. CP at 346 (Corrective Action Policy§ 2). As a matter oflaw, Ms. Mikkelsen's atwill employment was not modified by the commissioner's adoption ofthe policy.

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### No. 33528-3-III Mikkelsen v. PUD #1 of Kittitas County
Promises of specific treatment 

### The second exception to the terminable at-will character ofemployment for an indefinite term exists where
an employer, for whatever reason, creates an atmosphere of job security and fair treatment withpromises ofspecific treatment in specific situations and an employee is induced thereby to remain on thejob and not actively seek other employment, those promises are enforceable components ofthe employmentrelationship. Thompson, 

### 102 Wn.2d at 230 (emphasis omitted). In recognizing this exception, the Thompson 

### court observedthat an employer can write policies using language that "may not amount to promises ofspecific treatment and merely be general statements of company policy and thus, not binding." Id. 

### at 231. "Moreover, the employer may ... write them in a manner that retains discretion to the employer." Id. 

### The elements ofajustifiablereliance claim are (1) a promise contained in an employee manual or handbook orthe like, (2) the employee'sjustifiable reliance, and (3) breach by the employer. DePhillips, 

### 136 Wn.2d at 35. "Inparticular, thejustifiable reliance element takes the claim out ofthe traditional contract realm." Id. 

### The PUD's corrective action policy can be read only as general statements ofa discretionary company policy. Its first page states: 1.1 Corrective Action Corrective action should be fair. This means, while the District retains the discretion to determine what action is appropriate in any particular situation, 

### the corrective action should be equal with the 35No. 33528-3-111 Mikkelsen v. PUD #1 of Kittitas County
misconduct orperformance deficiency at issue, and whenever possible, performance issues typically should be addressed, at least initially, with an eye to improvement. CP at 343 (emphasis added). The secondpage states: 2.0 Reasons for Corrective Action These are onlyguidelines. To be able to respond appropriately to whateverparticular circumstances may arise in the future, the Districtmust[] reserve the right to determine the categorization of, andresponse to, any conduct orperformance concern, regardless of where it falls within the broadparameters set forth below. CP at 344 (emphasis added). As already observed, the fourth page ofthe policy states that "[t]he rules set out here are intended only as guidelines, and do not give any employee a right to continued employment or any particular level ofcorrective action." CP at 346. Elsewhere, it states: 3.0 Corrective Action

... However, this is only aguideline. The District does notpromise employees a specific formula of corrective action will befollowed in every instance. Different circumstances warrant different responses. Unless otherwiseprohibitedby law, when the District concludes an employee has not adhered to its standards or performance otherwise is unsatisfactory, the District may take the corrective action it decides is appropriate under the circumstances, which may involve any one or combination of the steps identifiedbelow, up to and including immediate discharge withoutprior corrective action or notice.

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CP at 

### 346 (emphasis added). Finally, in listing different types ofcorrective action, the policy identifies the type ofconduct or offense in connection withwhich each is "generally" used. CP at 

### 346-47. There is only one use ofmandatory language in the entire policy: paragraph 1.3, which states, "Corrective action mustbe administered with due consideration of, and respect for, employee rights and expectations, whetherthose rights and expectations derive from employmentpolicies, operation oflaw, or contract." CP at 

### 344 (emphasis added). As an example, it cites a union employee's contractual right to union representation. Although "must" is mandatory, twothings diminish the significance ofthe statement. The first is that it appears in a policy that makes the PUD's use ofcorrective action optional. In context, the provision means that if corrective action is used, then it mustbe administered with due consideration ofemployee rights and expectations. The second is that unlike the PUD's union-represented employees, Ms. Mikkelsen cannotpointto any "right or expectation" that neededto be considered or respected in taking corrective action against her. Her employment contractwas terminable at will; she does not rely for her breach ofpolicy claim on any right arising from "operation oflaw;" and the corrective actionpolicy itselftakes pains to avoid creating employee rights or expectations by emphasizing its discretionary character.

37No. 33528-3-III Mikkelsen v. PUD#1 of Kittitas County
In using almost entirely discretionary language and one inconsequential mandatory term, the PUD's policy is like others that Washington courts have held, as a matter oflaw, to make no enforceablepromise ofspecific treatment. See, e.g., Quedado
v. Boeing Co., 168 Wn. App. 363,372,276 P.3d 365 (2012) (company policies did not promise that it would adhere to a matrix ofrecommended disciplinary sanctions); Trimble
v. Wash. State Univ., 140 Wn.2d 88, 95, 993 P.2d 259 (2000) (nature ofperformance evaluation was discretionary); Drobnyv. Boeing Co., 80 Wn. App. 97, 105, 907 P.2d 299 (1995) (policy retained employer's discretion to discharge employees withoutprogressive discipline); McClintick v. Timber Prods. Mfg., Inc., 105 Wn. App. 914, 922, 21 P.3d 328 (2001) (employment guidebook contained "noterms such as 'shall,' 'will,' or 'must' that indicate the practice is mandatory"). 8 Summaryjudgment dismissal ofthe breach of policy claims was appropriate.

Ward. III. Negligent hiringandsupervision Ms. Mikkelsen next argues that the PUD negligently hired and supervisedMr.

A negligent supervision claim requires showing: (1) an employee acted outside the scope ofhis orher employment; (2) the employee presented a risk ofharm to other employees; (3) the employerknew, or should have known in the exercise ofreasonable care, that the employee posed a risk to

8 Given the clearly discretionary language ofthe policy, the fact that it had been applied to two employees, neither presenting a problem ofdiscord and friction at the management level, adds nothing to Ms. Mikkelsen's argument. 38No. 33528-3-111 Mikkelsen v. PUD #1 of Kittitas County others; and (4) thatthe employer's failure to supervise was the proximate cause ofinjuries to other employees. Briggs v. Nova Servs., 135 Wn. App. 955, 966-67, 147 P.3d 616 (2006), aff'd, 166 Wn.2d 794, 213 P.3d 910 (2009). The only "difference between negligent hiring and negligent retention is the time at which the employer's negligence occurs." Peckv. Siau, 65 Wn. App. 285, 288, 827 P.2d 1108 (1992). Ms. Mikkelsen contends the PUD negligently hired Mr. Wardbecause it knew of his workhistory, which included short-tenurejobs. Butthere is no evidence ofthe
reasons for Mr. Ward's moves from onejobto another, and the PUD hired Langely & Associates to vetpotential candidates and contact references. Asked in her deposition about any mistakes the board made in the hiring process, Ms. Mikkelsen conceded, "I don'tthink this is the board's fault. I think it'sthe headhunter." CP at 127. She also admitted that Mr. Ward's references were checked but she understood that prior employers did not tell the truth. As a matter oflaw, she demonstrates no negligence in the PUD's hiring ofMr. Ward. Ms. Mikkelsen claims negligent supervision ofMr. Ward because she informed CommissionerHanson ofthe way Mr. Ward was treating her, thereby putting the PUD on notice, and yethe took no action. By her own report, she spoke with Commissioner Hanson on July 24, 2011. She was fired on August 22. She does not identify any action outside the scope ofMr. Ward's employment as general managerthat he took during that
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less than one month time frame, during which most ofwhich he was out oftown for his daughter's wedding. She also does not identify any injury proximately caused by actions outside the scope ofMr. Ward's authority during that time frame. Injury is an element ofthe claim. Although she baldly states, "There is no question as to the proximate cause issue," Brief ofAppellant at 49, she appears to be referring to the fact that Mr. Ward fired her. Firing her was within the scope ofMr. Ward's authority. See RCW 54.16.100 ("The manager shall
...hire and discharge employees under his orher direction"). Ifwrongful, it can be the basis ofvicarious liability, but it cannot be the basis ofa negligent supervision claim. LaPlantv. Snohomish County, 162 Wn. App. 476, 271 P.3d 254 (2011). Summaryjudgment dismissal ofthe negligent hiring and supervision claims was proper. IV. Intentional infliction of emotionaldistress Finally, Ms. Mikkelsen claims Mr. Ward and the PUD are liable for intentional infliction ofemotional distress in the form ofMr. Ward's discrimination; his firing her from herjob, which resulted in lost income and a loss ofinsurance and retirement benefits; and negative statements about herperformance that made their way into local
news reports and other materials available on the Internet. To establish a claim ofintentional infliction ofemotional distress, the plaintiff must show (1) outrageous and extreme conduct by the defendant, (2) the defendant's 40 

# INo. 33528-3-111 Mikkelsen v. PUD #1 of Kittitas County
intentional orreckless disregard ofthe probability ofcausing emotional distress, and (3) actual result to the plaintiffofsevere emotional distress. Commodore v. Univ. Mech. Contractors, Inc., 120 Wn.2d 120,135,839 P.2d 314 (1992). "Liability exists 'only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds ofdecency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Grimsbyv. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975) (emphasis omitted) (quoting RESTATEMENT (SECOND) ofTORTS§ 46 cmt. d. (AM. LA

### w INST. 1965)). Liability "'does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or othertrivialities.' In this area plaintiffs must necessarily be hardenedto a certain degree ofrough language, unkindness and lack of consideration." Id. When the conduct a plaintiffcomplains ofis within a defendant's legal rights, it is privileged, whether ornot extreme and whether or notthe defendant is aware that insisting on his legal rights is certain to cause emotional distress. RESTATEMENT (SECOND) OF TORTS§ 46 cmt. g. The PUD can have no liability, then, for terminating Ms. Mikkelsen's at-will employment even ifMr. Ward and the commissioners could foresee that losing herjob, and the related loss ofbenefits, would cause her emotional distress. Thetrial court serves a "gatekeepingrole" in determining what qualifies as outrage. Steinbockv. Ferry CountyPub. Util. Dist. No. 1, 165 Wn. App. 479,492,269 41No. 33528-3-III Mikkelsen v. PUD #1 of Kittitas County
P.3d 275 (2011). Even viewed in the light most favorable to Ms. Mikkelsen, her evidence does notraise ajury question. Losing a long-termjob and being unfavorably described by a former employer could, ofcourse, be upsetting, butthat and the other conduct about which she complains amount, at most, to indignities, annoyances, rough language, unkindness, or lack ofconsideration. They are not beyond all possible bounds ofdecency. Compare Strong v. Terrell, 147 Wn. App. 376, 195 P.3d 977 (2008) (affirming summaryjudgmentdismissal where supervisor screamed at employee daily; criticized her work; told "dumb blonde"jokes; ridiculed her personal life; and disparaged her house, her husband'sjob, and her decision to place her son in therapy), with Grimsby, 85 Wn.2d 52 (husband was required to watch helplessly as his wife suffered and died). Ms. Mikkelsen's evidence ofher emotional distress also fails to raise a genuine issue offact. Objective symptomatology is not required to demonstrate severe emotional distress. Kloepfel v. Bokor, 149 Wn.2d 192, 198, 66 P.3d 630 (2003). "Severe emotional distress is, however, not 'transient and trivial' but distress such 'thatno reasonable man could be expectedto endure it.'" Id. at 203 (quoting RESTATEMENT (SECOND) OF TORTS §46 cmt.j.). Ms. Mikkelsen's conclusory characterization ofher emotional distress relies chiefly on worry and concern arising from financial setback from termination ofher employment, but since the termination ofher employment is not actionable, resulting distress is not compensable. Especially after setting that aside, her report of 42No. 33528-3-111 Mikkelsen v. PUD #1 of Kittitas County embarrassment, humiliation, anger, grief, and worry do notrise to the unendurable level. Compare Brower v. Ackerley, 88 Wn. App. 87, 943 P.2d 1141 (1997) (finding issue of fact where plaintiffexperienced acute anxiety, secured his house, gathered his wife and cats in an upstairs bedroom, was nervous, unable to sleep, was very agitated and upset for days, and was afraid to appear in public), with Spurrell v. Bloch, 40 Wn. App. 854, 701 P.2d 529 (1985) (no issue offact where plaintiffs claimed a sleepless night, tears, loss of appetite, and anxiety after their children were removed from their home without notification). Again, summaryjudgment dismissal was proper. Affirmed.

WE CONCUR:

m;,J. 

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