IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ELIZABETH BROOKS and JASON BROOKS, husband and wife, Appellants,

v. BPM SENIOR LIVING COMPANY, aka STERLING PARKS, LLC, Respondent. No. 69332-8-1 DIVISION ONE

UNPUBLISHED FILED: March 17. 2014



### Cox, J. — Elizabeth and Jason Brooks appeal the trialcourt's findings of fact and conclusions of law and the judgmentdismissing their claims against 

### BPM Senior Living Company. Because the findings of fact are supported by substantial evidence and supportthe related conclusions of law andjudgment,

we affirm. 

### BPM operates 17 senior-living facilities in seven states, including Washington. Itscorporate office is in Portland, Oregon. In 2007, BPM's SeniorVice President of Marketing and Sales left the 

### company. Elizabeth Brooks was promoted toVice President of Sales, and she assumed some of the marketing responsibilities ofthe former SeniorVice
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Brooks lived in Kirkland and often worked from her home office. But she 

### had to travel regularly to the corporate office in Portland as well as to BPM's other facilities. 

### InFebruary 2009, Brooks announced that she was pregnant. She had an 

### excellent employment record. "She had never been written up, had never been counseled on improvement, and had never received negative criticism for her 

### work performance."1 During that same year, the occupancy rates for BPM'sfacilities declined significantly and were lower than its competitors. The company's revenues also declined by more than $1.4 million below projected estimates. In March, BPM's owner, Walter Bowen, criticized Brooks's performance 

### because of the lowoccupancy rates. Bowen stated this criticism ine-mails to the 

### president of the company, DennisParfitt, and to the chief operatingofficer, Dan Lamey. 

### In September, Brookstold BPM that she planned to take six weeks of maternity leave and then work part-time for an additional six weeks. But sometime after the birth of her daughter that month, Brooks decided to take 12 weeks ofmaternity leave before returning to work. 

### Four days after giving birth, Parfitte-mailed Brooks to inform her that 

### Bowen was searching for a new marketing and sales executive. Parfittwrote, "I 

### certainly don't mean in any way to alarmyou, butIthink it'sonly prudent forall of us to be aware of our options and employment opportunities ifchange were to

1Clerk's Papers at 60.No. 69332-8-1/3 

### happen
... and thatincludes me."2 Brooks became concerned thatherjobwas injeopardy. In October, Brooks requested that she return to work on a part-time basis. 

### BPM granted this request, and she started working part-time in mid-November. 

### In early December, Parfittpressured Brooks to resign. Parfittsuggested that Brooks take a lower-paying position that did not require travel. He also 

### encouraged her to begin her own consulting business. And he offeredthree months ofseverance. Brooks did not accept any ofthese suggestions or offers. Instead, she resumed her full-time schedule in mid-December. When Brooks returned, Parfitt told her that her last day at BPM would be 

### onDecember31 because Bowen wanted her"offthepayroll."3 ButonDecember 30, Bowen's assistant told Brooks that she would meetwith Bowen inJanuary, 

### indicating that Brooks was to remainwith the company after the end of the year. Inmid-January 2010, Lamey, the chiefoperating officer, created a travel schedule for Brooks that required travel almost every week from February to 

### April. Brooks requested a lightertravel schedule because she was nursing her baby. She said that she would travelas much as possible and would travelwith her baby and mother-in-law. BPM adjusted the schedule. On February 23, Brooks obtained a doctor's note that prohibited travel as 

### long as she was nursing, butshe did not give the note to anyone at BPM. Two

2Id at 62 (citing Ex. 7). 3 Id. at 64.No. 69332-8-1/4 days later, Parfitt told Brooks that hertravel obligations were suspended until she completed plans ofaction for BPM's facilities. On March 10, Brooks gave the doctor's note to Parfitt and explained that "the proposed travel schedule 'seriously impacted my ability to produce milkand 

### tofeed my daughter.'"4 Thedoctor stated thatBrooks should nottravel as long
as she was nursing. On March 16, Brooks left BPM. Brooks claims that she was terminated. BPM claims that Brooks voluntarily resigned after negotiating a severance package. Brooks commenced this lawsuit asserting sex and disability discrimination, 

### wrongfultermination in violation of public policy, retaliation, outrage, negligent infliction of emotional distress, and loss of consortium. As the trial approached, Brooks also asserted interference with maternity leave, failure to accommodate a disability, and harassment. 

### During the bench trial ofthese claims, the court sanctioned Brooks's counsel $250 for communicating with one of BPM's speaking agents. Following 

### the six-daytrial, the court entered written findings of fact and conclusions of law and a judgment. The court dismissed all of Brooks's claims with prejudice. In the judgment, the court suspended the $250 sanction against counsel. This appeal followed.

4Id at 67 (quotingEx. 49).No. 69332-8-1/5
STANDARD OF REVIEW 

### We review atrial court's findings offactfor substantial evidence.5 "Substantial evidence to support a finding of fact exists where there is sufficient 

### evidence inthe record 'to persuade a rational, fair-minded person ofthe truth of 

### thefinding.'"6 Unchallengedfindings areverities onappeal.7 

### Thefindings offact must supportthetrial court's conclusions oflaw.8 "'Questions of law and conclusions of laware reviewed de novo.'"9 Mixed questions of law and fact are reviewed underthese same standards.10 ADVERSE EMPLOYMENTACTION 

### Brooks argues that the trial court improperly concluded that she did not suffer an adverse employment action for her sex and disability discrimination claims. We disagree. 

### Under Washington's LawAgainst Discrimination (WLAD), chapter49.60 RCW, "It is an unfair practice for any employer. . . [t]odischarge or bar any 

### person from employment because of. . . sex ... or the presence of any sensory,
5Heawine v. Lonqview Fibre Co.. Inc., 162 Wn.2d 340, 352-53, 172 P.3d 688 (2007).

### 6Id at 353 (quoting In re Estate ofJones. 152 Wn.2d 1, 8, 93 P.3d 147 (2004)). 7Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 808, 828 P.2d 549 (1992). 8Hegwine, 162 Wn.2d at 353. 

### 9Jd (quoting Sunnvside Valley Irrigation Dist. v. Dickie. 149 Wn.2d 873, 880, 73 P.3d 369 (2003)). 10 Harris v. Urell. 133 Wn. App. 130, 137, 135 P.3d 530 (2006).No. 69332-8-1/6 

### mental, orphysical disability."11 Itis also"an unfairpracticefor anyemployer.
.. [t]odiscriminate against any person in compensation or in otherterms or conditions ofemployment because of.
. . sex ... or the presence ofany sensory, 

### mental, orphysical disability."12 WAC 162-30-020(3) further provides, "It is an unfair practice for an employer, because ofpregnancy or childbirth, to: (i)Refuse to hire or promote, terminate, or demote, a woman; (ii) Impose different terms and conditions of employment on a woman." 

### Aplaintiffalleging discrimination must show: "(1) membership in a 

### protected class; (2) the employee is qualified for the employment position or 

### performing substantially equal work; (3)an adverse employmentdecision including termination ordenialof promotion, and (4) selection by the 

### employer of a replacement or promoted person fromoutside the protected class."13 In Kirbv v. City ofTacoma. Division Two ofthis court explained that "[a]n 

### actionable adverse employment action must involve a change inemployment conditions that is more than an 'inconvenience or alteration ofjob

11 RCW49.60.180(2). 12 RCW49.60.180(3). 13 Kuestv. RegentAssisted Living. Inc., 111 Wn. App. 36, 44, 43 P.3d 23 (2002) (emphasis added).No. 69332-8-1/7 

### responsibilities.'"14 Termination is onetype ofanadverse employmentaction.15 "In contrast, yelling at an employee orthreatening to fire an employee is not an 

### adverseemploymentaction."16 Once the plaintiffpresents a prima facie case for sex discrimination, the 

### employer must produce evidence of legitimate, nondiscriminatory reasons for its 

### actions.17 Ifthe defense meets this burden, the plaintiffmust show that the 

### employer's statedreasons arepretextual.18 Here, Brooks asserts that she suffered three different adverse 

### employment actions: (1) BPM firing Brooks on December 31, 2009; (2) BPM 

### increasing Brooks's travel inJanuary and February 2010; and (3) BPM firing Brooks in March 2010. December "Firing" Forthe first assertion, the trial court concluded that Brooks did not suffer
an adverse employment action: 

### Had the companyfollowed through with itsthreats to terminate Ms. Brooks by December 31, 2009, this would have constituted an 

### adverseemploymentaction. However, thecompany decided at the 

### lastminute nottopursuethis course ofaction.' ]

14124Wn.App. 454, 465, 98 P.3d 827 (2004) (quoting DeGuiseppe v.Vill. of Bellwood. 68 F.3d 187, 192 (7th Cir. 1995)). 15 See Kuest. 111 Wn. App. at 44-45. 16 Kirbv, 124Wn. App. at 465. 17 Grimwood v. Univ. of Puqet Sound. Inc.. 110 Wn.2d 355, 363-64, 753 P.2d 517(1988). 

### 18 id at 364. 19 Clerk's Papers at 71.No. 69332-8-1/8 This conclusion of law is supported by unchallenged findings of fact. The trial court found that Parfitttold Brooks that Bowen wanted her "offthe payroll" by 

### December 31, 2009.20 But "[o]n December30,2009, Mr. Parfittinformed Mr. 

### Lamey '[Bowen] wants to get[Brooks] backinvolved.'"21 Then, "Mr. Bowen's assistant called Ms. Brooks and asked herto attend a meeting in Portland the following week, indicating that Ms. Brooks would still be employed by the 

### company afterthe end oftheyear."22 These unchallenged findings areverities
on appeal. And a threat to fire is not actionable as an adverse employment 

### action.23 Thetrial courtproperly concluded thatBrooks did notsufferan adverse employment action. Brooks argues that she suffered an adverse employment action because she was "never officiallyreinstated" after being terminated. This argument presupposes there was a termination. There was not. Thus, this argument is not persuasive. Increased Travel For the second assertion, the trial court assumed, without deciding, "that increasing Ms. Brooks' travel responsibilities constituted an adverse employment 

### action byvirtue ofbeing 'a reassignmentwith differentresponsibilities.'"24 Given

20 Id at 64. 21 Id 22 Id.

23 See Kirov. 124 Wn. App. at 465. 24 Clerk's Papers at 72 (quotingCrownoverv. Dep'tofTransp., 165Wn. App. 131, 148, 265P.3d971 (2011)). 8No. 69332-8-1/9 Bowen's "hostile emails" that coincided with her pregnancy, the trial court 

### concluded thatBrooks established a primafacie case ofsexdiscrimination.25 The burden then shifted to BPM to establish that there was "legitimate, 

### non-discriminatoryexplanation forthetravelling requirements."26 Thetrial court concluded that BPM met this burden: It is undisputed that by early 2010, the occupancy rates at BPM's properties had declined significantly and were lower than those of its competitors. As VP of Sales, ithad always been Ms. Brooks' responsibility to travel to the company's facilities. Given the crisis in which the company found itself, BPM had legitimate, non discriminatory reasons for insisting that Ms. Brooks retain, and 

### even increase, hertravel responsibilities.'271 To support this conclusion, the trial court found that BPM's occupancy rates were 

### declining and a new sales and marketing strategy was needed in 2009: 14. During2009, the occupancy rates at BPM's properties declined significantly and were lower than those of its competitors. The company's revenue for 2009 was accordingly lowerthan 

### annual budget estimates by more than $1.4 million. The 

### decreasing occupancy and revenue prompted a reconsideration of 

### salesand marketing strategy and personnel.1281 This finding is supported by an August 16, 2009 e-mail where Bowen explained that the new director ofmarketing and sales would need to travel four days a 

### week "to continuallyevaluate themarket."29 Moreover, this record establishes thatthere was both a decline inoccupancy rates and projected revenues of BPM. 

### 25 id 26 id (citing Hill v. BCTI IncomeFund-I. 144 Wn.2d 172, 23 P.3d 440 (2001)). 27 Id 

### 28 id at 60 (citing Ex. 4, 5). 29 Ex. 4.No. 69332-8-1/10 It follows that sales and marketing strategy and personnel were appropriate. The findings support the court's conclusion that BPM had a legitimate, nondiscriminatory reason for its actions. Lastly, the court concluded that Brooks did not establish that the travel schedule was pretextual: Ms. Brooks has not established that requiring her to travel an average of 3.6 weeks per month was a pretext for discriminating 

### against herfor having a child. Ms. Homer, the Regional Director of Sales for the southern region, who did not take pregnancy leave, 

### testified that she travels three weeks permonth.t30] In orderto show that an employer's stated rationale for an employment 

### decision was pretextual or "unworthy of belief," a plaintiffmust produce evidence from which a trier offact could infer that the employer's "articulated reasons" for 

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

### decisions forotheremployees in the samecircumstances."31 Here, Brooks fails to point to any evidence to show thatthe lowoccupancy 

### rate and diminished projected revenues were not the reason for her increased travel schedule forthe position she then held. Rather, there was evidence that Bowen believed that Brooks's presence at its multiple properties would increase 

### occupancy rates.32

30 Clerk's Papers at 72. 31 Kirbv. 124Wn. App. at 467. 32 Ex. 4, 31.
10No. 69332-8-1/11 In sum, the trial court properly concluded that Brooks did not establish that the 2010 travel schedule was pretext for discrimination. Brooks argues that the trial court failed to apply the correct standard in determining whether the travel schedule was pretextual. She argues that the court failed to review the facts under the "totality ofthe circumstances standard." But the "totality ofthe circumstances" is not the appropriate standard for this claim. That standard relates to one element of a hostile work environment claim.33 In any event, it is clearfrom this record that the trial court considered the travel schedule in the context ofthe surrounding circumstances. Brooks argues that the only evidence to establish that BPM had a legitimate, non-discriminatory reason for the travel schedule was "self-serving statements of BPM's owner and two of its employees." She asserts that BPM failed to provide "documentation of its claims that occupancy rates were lower than at other similarly situated assisted livingfacilities." Brooks does not cite any authority that supports her assertion that sworn testimony is insufficient or that "documentation" is necessary to establish a legitimate, non-discriminatory
reason. Accordingly, we reject this argument. Brooks also contends that the "record is replete that the senior housing industry had been adversely affected by the housing crisis." She argues that the low occupancy rates were part of this "ongoing housing crisis" and was not new in 2010. While this assertion may be true, itdoes not prevent low occupancy 33 See Glasgow v. Georgia-Pacific Corp.. 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985); Schonauerv. DCR Entm't. 79 Wn. App. 808, 820-21, 905 P.2d 392 (1995).
11No. 69332-8-1/12


### rates from being a legitimate, non-discriminatory reason for the 2010 travel schedule. Thus, this argument is not helpful. 

### Finally, Brooks argues thatthe suspension ofhertravel proves that the schedule was pretextual. She contends that the trial court "allowed BPM to have it both ways, claiming Ms. Brooks absolutely had to adhere to the schedule because the company was in 'crisis' without hertravel, while simultaneously 

### suspending hertravel." But an unchallenged finding of fact states that BPM suspended Brooks's travel because she had not completed plans ofaction for 

### each ofBPM's properties.34 Parfitt suspended hertravel until Brooks completed the plans. Thus, the suspension ofBrooks's travel does not call into question 

### BPM's legitimate, non-discriminatory reason forthe travel schedule. This argument is not persuasive. March "Firing" For the third assertion, the trial court also concluded that there was no adverse employment action: Likewise, had the company terminated Ms. Brooks' employment in March 2010, this would also have been an adverse employment 

### action. But, as already determined, Ms. Brooks was not terminated 

### and instead agreed to leave in return for six months ofseverance. The fact that she ultimately decided not to sign the Separation 

### Agreement and Release does not convert her resignation into a termination.1351

34 Clerk's Papers at 67 (citing Ex. 45). 35 Id. at 71.
12No. 69332-8-1/13 

### This conclusion is supported by the challenged finding of fact that Brooks voluntarily resigned from herjob. The trial court gave four reasons why itmade 

### this findingdespite Brooks's testimony that she was involuntarilyterminated: 52. The court credits the testimony of Mr. Parfitt on the issue ofwhether Ms. Brooks was involuntarily terminated, for the following reasons: First, Ms. Brooks' contemporaneous notes ofthe March 16 telephone conversation do not establish by a preponderance ofthe evidence that she was terminated. The notes include the term "separate ways," but not "you're being let go." In addition, Ms. Brooks' notes of a telephone conversation the next morning are more consistent with Mr. Parfitt's testimony that Ms. Brooks requested six months' severance and that Mr. Parfitt would try to get authority for that: "Walt [Bowen] not in yet. Steve felt '6 months work [sic] for him!' Understands why Iwant 6 mo. Fight for 6 months." Exhibit 166. An employee who has agreed to leave but wants certain terms in return is more likely to negotiate aggressively over severance pay than an employee who has been fired. Second, Mr. Parfitt's version is more consistent with the email he sent her shortly before the phone call, including "Let me know ifyou are interested in that [Overlake Terrace] [position], as I would like to see you to [sic] remain with our organization." Exhibit 51. Third, the cheerful tone of Ms. Brooks' subsequent correspondence with Mr. Parfitt is more consistent with a mutually agreed separation than an involuntary termination. As previous correspondence reflects, Ms. Brooks was quite capable of being assertive with Mr. Parfitt. See Exhibits 15, 49. Yet, in response to Mr. Parfitt's March 17, 2010 email in which he stated that he would have a final check for her that afternoon, Ms. Brooks wrote, "I will have my email [announcing her departure] for your review this morning!" Exhibit 53. Later, that day, after submitting the draft announcement, Ms. Brooks wrote to Mr. Parfitt: "[L]et me know what you think ofthe rough draft email (and, yes, you can tease me about 'too' versus 'two'!).
. . . Have a drink for me!" Fourth, the company's March 18, 2010 Personnel Action Notice reflects a mutual parting ofthe ways ratherthan a firing. Under the "dismissal" box, the document refers [to] the following
13No. 69332-8-1/14
statement at the bottom ofthe document: "Negotiated separation by mutual agreement and subjectto separate severance agreement." After the question "would you rehire?" the "yes" box is checked. Exhibit 57.[36] This court defers to the trial court's assessment of witness credibility and 

### evidenceweightand will not substitute itsjudgmentforthatofthetrial court.37 The court stated that itmade a credibility determination on which evidence to 

### believe and then gave detailed reasons why. We will not disturb this credibility determination on appeal. 

### Brooks argues thatthere is no proof that she voluntarilyresigned. She is
wrong.She asserts that she "did not sign any documents related to a severance 

### package," she "did not sign any Release of Claimswith BPM," and she "did not sign BPM's Personnel Action Notice." The absence ofthese documents does nothing to diminish the force of the trial court's credibility determination that we just discussed. We reject this argument to the contrary. Brooks also contends that "[a]nemployerdoes not ordinarily pay


### severance to an employee who itdecides to terminate." But Brooks provides no supportfor this assertion. Accordingly, we do notaddress itfurther. Insum, the trial court properly concluded that Brooks did not suffer any 

### adverse employment action to establish her sex and disability discrimination
claims.

36 Id at 69-70 (most alterations inoriginal). 37 In re Welfare of Sego. 82 Wn.2d 736, 739-40, 513 P.2d 831 (1973).
14No. 69332-8-1/15
HOSTILE WORK ENVIRONMENT 

### Brooks argues that the trial court improperly concluded that she did not establish a hostile work environment claim. We disagree. 

### To establish a prima facie case ofhostile work environment, a plaintiffhas 

### the burden of showing (1) the harassmentwas unwelcome, (2) the harassment
was because ofthe plaintiff's protected class such as sex or disability, (3) the harassment affected the terms or conditions ofemployment, and (4) the 

### harassment isimputed to theemployer.38 To meetthe third element, the plaintiffmust establish that the harassment


### was "sufficientlypervasive so as to alterthe conditions ofemployment and create 

### anabusive working environment."39 "Whetherconductrises tothis level depends on the totality of the circumstances, including]thefrequency ofthe 

### discriminatory conduct; its severity; whetherit isphysicallythreatening or humiliating, ora mere offensive utterance; andwhetherit unreasonably 

## interferes with an employee's workperformance.'"40 Here, the trial court characterized Brooks's alleged harassment as falling 

### into two time periods: (1) BPM "pressuring her to leave her job between

38 Estevez v. Faculty Club of Univ. ofWash.. 129 Wn. App. 774, 794, 120 P.3d 579 (2005). 39 Glasgow. 103 Wn.2d at 406. 40 Schonauer. 79 Wn. App. at 820-21 (alteration in original) (citing Glasgow. 103 Wn.2d at 406-07) (quoting Harris v. Forklift Svs.. Inc.. 510 U.S. 17, 23, 114 S. Ct. 367, 371, 126 L Ed. 2d 295 (1993)).
15No. 69332-8-1/16 September and December 2009, and (2) BPM "pressuring herto increase her 

### travel between January andMarch 2010."41 For the second time period, the trial court concluded that the claim failed because the pressure to increase Brooks's travel was not based on her sex. It explained that "[t]he requirement that she travel was based on the occupancy 

### ratecrisis, not onMs. Brooks' pregnancy."42 Forthe first time period, the trial court concluded that "BPM's efforts to get 

### Ms. Brooks toleavethecompany in late 2009 were related to herpregnancy."43 To support this conclusion, itmade the following unchallenged findings: 22. On September 24, 2009, Mr. Parfitt advised Ms. Brooks via email that the company was searching for a new executive
.... 

### 23. Following the September 24, 2009 email, Ms. Brooks became concerned that herjob was injeopardy. She testified that 

### she contacted Mr. Parfitt by phone on September 25 to discuss the email, and he explained that he would do what he could to save her job.
28. Mr. Parfitt met Ms. Brooks for lunch on December 10, 

### 2009. Duringthe lunch meeting, he offered her a lower-paying, onsite position at the Overlake Terrace property in Redmond, 

### Washington, which she refused. He also encouraged her to begin her own consulting business and offered her a six-month contract with BPM that would run from January 2010 to June 2010. He offered her severance pay amounting to three months' salary, which she declined. According to Ms. Brooks, she was being 

### pressured to resign. Mr. Parfitt, on the other hand, testified that he was merely helping her brainstorm ways that she could avoid 

### having to travel so she could stay home with her child.
41 Clerk's Papers at 72. 

### 42 id at 72-73. 43 Id. at 73.
16No. 69332-8-1/17 29. The court credits the testimony of Ms. Brooks on this 

### issue. Theimpetus to leave camefrom thecompany, notfrom Ms. Brooks.
.. .l441 Thus, the trial court concluded that the harassment was because of Brooks's sex for this first time period, which satisfies the second element of a hostile work environment claim. Nevertheless, the trial court concluded that Brooks failed to establish the third element, which was that the harassment was "'sufficiently pervasive so as to 

### altertheconditions ofemploymentand create anabusive workenvironment.'"45 The court entered the following findings and conclusions: The court credits Ms. Brooks' testimony that while on maternity leave she had a number of phone conversations with Mr. Parfitt from which she reasonably concluded that herjob was injeopardy. Likewise, at the December 10 lunch, Mr. Parfitt pressured her to 

### resign and become a consultant. However, there is no evidence that Mr. Parfitt ever engaged in abusive behavior towards her. While his communications were certainly upsetting to Ms. Brooks, 

### this had to do withthe possible loss ofherjob, not the way in which Mr. Parfitt communicated the message. Further, none of Mr. Bowen's harsh emails were disclosed to Ms. Brooks until discovery in this lawsuit. Thus, they cannot be a basis for a hostile work 

### environment claim.[46] The findings are supported by substantial evidence. As the trial court notes, Parfitt's e-mails and communications do not appear abusive. Rather, they 

### have a respectful and often friendly and concerned tone. Additionally, the emails where Bowen criticized Brooks were not sent to Brooks. These findings 

### togetherwiththe unchallenged findings noted above supportthe trialcourt's
44 Id at 62-63. 45 Schonauer. 79 Wn. App. at 820 (quoting Glasgow, 103 Wn.2d at 406). 46 Clerk's Papers at 73.
17No. 69332-8-1/18
conclusion that Brooks failed to establish the third element of her hostile work environment claim. Brooks argues that the trial courtfailed to considerthe totality ofthe 

### circumstances when coming to this conclusion. But the court made a number of findings that support its conclusion. There is nothing to suggestthatthe trial court did not considerthe totality ofthe circumstances. Thus, this argument is not persuasive. DISABILITY DISCRIMINATION 

### Next, Brooks argue that she had a temporary disability—diminished milk 

### production due to stress. She contends that the trial court improperly concluded that BPM attempted to accommodate this disability. We disagree. 

### The WLAD requires employers to reasonably accommodate a disabled 

## employee unless the accommodation would pose an undue hardship.47 An employee must establishfour elements toprove discrimination based onlack of accommodation: "(1) the employee had a sensory, mental, or physical [disability] that substantially limited his or her ability to perform the job; (2) the employee
was qualified to perform the essential functions of the job in question; (3) the 

### employee gave the employer notice of the [disability] and its accompanying substantial limitations; and (4) upon notice, the employerfailed to affirmatively

47 Frisino v. Seattle Sch. Dist. No. 1, 160 Wn. App. 765, 777, 249 P.3d 1044 (2011) (citing RCW 49.60.180(2)).
18No. 69332-8-1/19 adopt measures that were available to the employer and medically necessary to 

### accommodate the [disability]."48 Disability 

### As an initial matter, BPM argues that Brooks's pregnancy-related 

### employment discrimination claim is not subjectto a disability accommodation analysis. We need not decide whetherthis is correct. Rather, we assume 

### without deciding, that Brooks's alleged condition is a disability and, thus, subject to an accommodation analysis. 

### The WLAD defines a "disability"as "the presence of a sensory, mental, or 

### physical impairmentthat: (i) Ismedically cognizable or diagnosable; or(ii) Exists
as a record or history; or (iii) Is perceived to exist whether or not it exists in 

### fact."49 "A disability exists whetherit istemporary or permanent, common or uncommon, mitigated orunmitigated, or whether or not itlimits the ability towork 

### generally orwork at a particularjob or whetheror notit limits any otheractivity 

### within thescope ofthis chapter."50 In Heqwine v. Lonqview Fibre Co., the supreme court considered whether 

### claims of employmentdiscrimination because of pregnancy are subject to a 

### disability accommodation analysis.51 The courtheld that "undertheplain language of theWLAD and itsinterpretative regulations, pregnancyrelated
48 Davis v. Microsoft Corp.. 149 Wn.2d 521, 532, 70 P.3d 126 (2003) (emphasis omitted). 49 RCW49.60.040(7)(a). 50RCW49.60.040(7)(b). 51 162 Wn.2d 340, 348-52, 172 P.3d 688 (2007).
19No. 69332-8-1/20 

### employmentdiscrimination claims arematters ofsexdiscrimination."52 "Such claims are not subject to an accommodation analysis similarto that used inthe 

### disability context."53 WAC 162-30-020(2)(a) states that "'[p]regnancy' includes, but is not 

### limited to, pregnancy, the potential to become pregnant, and pregnancy related conditions." Itfurther defines "pregnancy related conditions" as including, but not limited to, "related medical conditions, miscarriage, pregnancy termination, and 

### thecomplications ofpregnancy."54 Here, Brooks asserts diminished milkproduction due to stress is a 

### temporary disabilityunderthe WLAD. BPM contends that this claimed disability is a "pregnancy related condition" and is not subjectto a disability accommodation analysis under Heqwine. As the trial court stated, it is a close question whether "an inability to 

### breastfeed may constitute a disability" and is subject to an accommodation 

### analysis.55 Like thetrial court, we assumewithoutdeciding thatBrooks's temporary condition meets the definition of a disability and proceed to considering whether Brooksestablished that BPM failed to accommodate this 

### alleged disability.56

52 Id at 349 (emphasis added). 

### 53 id 54WAC162-30-020(2)(b). 55 Clerk's Papers at 74. 56 See id.
20No. 69332-8-1/21
Failure to Accommodate Brooks argues that "BPM made absolutely no effort to either accommodate [her] or to help her seek anotherjob inthe company at the time of 

### hertermination."57 We disagree. "Areasonable accommodation requires an employer to take 'positive 

### steps' toaccommodate anemployee's disability."58 "To reach a reasonable accommodation, employers and employees should seek and share information with each otherto 'achieve the best match between the employee's capabilities 

### andavailable positions.'"59 Here, the parties agree that Brooks did not notify BPM of her claimed 

### disabilityuntil March 2010. An unchallenged finding of fact states: On March 10, 2010, Ms. Brooks informed Mr. Parfitt by email that 

### the proposed travel schedule "seriously impacted my ability to 

### produce milk and to feed mydaughter. In mydoctor's opinion this is negatively affecting Grade's health as well as my own health. In her medical opinion Ishould not travel during the time that Iam 

### breastfeeding and Iam providing you her note stating that medical fact." She provided Mr. Parfittthe note that Dr. Gong had given to 

### heronFebruary 23. Exhibit49.[60] Once Parfitt knew about her claimed disability, the trial courtfound that BPM 

### offered to accommodate Brooks "by offering her a non-travelling position at

57 Brief ofAppellant at 28. 58 Harrell v. Dep't ofSoc. Health Servs.. 170 Wn. App. 386, 398, 285 P.3d 159 

### (2012) (internal quotation marksomitted) (quoting Goodmanv. Boeing Co., 127Wn.2d 401, 408, 899 P.2d 1265 (1995)), review granted. 176 Wn.2d 1011 (2013). 

### 59 id (quoting Goodman, 127Wn.2d at 409). 60 Clerk's Papers at 67.
21No. 69332-8-1/22 

### Overlake Terrace .
.. thatpaid less."61 "There is noevidence thatMs. Brooks
was interested in pursuing other lower payingjobs, preferring instead the six

### month severancepackage offered by BPM."62 These findings are supported by substantial evidence. On March 16, 2010, Parfitt wrote an e-mail to Brooks detailing her options: 

### Your position always has, and always will, require regular visits to our properties. That said, if you wish to bring your child along on your business trips, as Iunderstand you have been doing, Iam more than happy to permitthat if it is something you are interested 

### in. You will be responsible howeverfor your own child care and any additional travel expenses. We will continue to provide you 

### time and space while at work to eitherbreastfeed or express milk, 

### depending on your preference. Iam also willing to take a look to see ifthere are any positions withinthe organization that do not 

### require travel. But ifyou take one ofthose, itmost likely would 

### require you to work at Overlake Terrace, and the only positions I can think of offhand, pay a lot less than what you currently make, so Ido not know whether that is an option you wish to discuss. 

### Regardless, let me know ifyou are interested in that, as Iwouldlike 

## to seeyou to remain in ourorganization.1631 Given this e-mail along with the court's findingthat Brooks voluntarily 

### resigned, the trial court properly concluded that Brooksfailed to satisfy her burden that "BPMdiscriminated against her in violation ofthe WLAD byfailing to 

### reasonably accommodate adisability."64 Brooks asserts that BPM failed to accommodate her disability because 

### there was no formal job offerwith a discussion ofwage, responsibilities, title, or
61 id at 75. 62 Id 63 Ex. 51. 64 Clerk's Papers at 75.
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start date. But Brooks does not cite any authority that supports the assertion that 

### a formal job offer is necessary and what thatjob offer must entail to qualifyas an accommodation. Thus, we need not further consider this argument. Brooks contends that Parfitt made no attempt to learn more about the 

### disability. She asserts that "BPM's failure to interact with Ms. Brooks, seek more information and attempt to work with [Brooks] to find a reasonable 

### accommodation contravenes well establishedWashington law."65 Buttherecord shows that Brooks and Parfitt communicated by e-mail and phone about her 

### alleged disability, and they discussed Brooks's options. As previously discussed, Brooks voluntarily resigned before BPM could implement any accommodations. Thus, this argument is not persuasive. 

### Finally, Brooks argues that the trial court erred when itfound that she could not perform the essential function of traveling "'with or without a reasonable accommodation.'"66 She contends that she was able to travel, but she was 

### asking for an accommodation for the frequency of her travel. While this may be true, the trialcourt's finding does not matter because it ultimatelyconcluded that BPM offered to accommodate Brooks. RETALIATION 

### Brooks argues that BPM's "actions and animosity, culminating in the termination of Elizabeth Brooks, constitute retaliation for asserting her legal right

65 Briefof Appellant at 29. 66 Briefof Appellant at 29-31 (quoting Clerk's Papers at 75).
23No. 69332-8-1/24
to maternity leave, her legal right to breastfeed as well as her legal right to 

### reasonableaccommodation."67 Wedisagree. "RCW 49.60.210(1) forbids employers to discharge or otherwise discriminate against an employee in retaliation for opposing practices forbidden 

### bythe [WLAD]."68 Toestablish a primafacie case ofretaliation, anemployee must prove: "(1) The employee engaged in a statutorily protected activity, (2) the employer took adverse employment action against her, and (3) there is a causal 

### linkbetween theprotected activity and the adverseaction."69 "Adverse employment action means a tangible change in employment status, such as 'hiring, firing, failing to promote, reassignment with significantly 

### differentresponsibilities, or adecision causing a significantchangein benefits.'"70 Here, as previously discussed, Brooks failed to establish that she suffered
an adverse employment action. Thus, the trial court properly concluded that the retaliation claim fails. We have already discussed and rejected Brooks's arguments to the contrary. INTERFERENCE WITH MATERNITY LEAVE Brooks argues that BPM unlawfully interfered with maternity leave. We again disagree. 

### 67 id at 37-42. 68 Crownover. 165 Wn. App. at 148.

69 Id. 70 Id. (Quoting Burlington Indus.. Inc. v. Ellerth, 524 U.S. 742,761, 118 S. Ct. 2257, 141 L.Ed. 2d 633 (1998)).
24No. 69332-8-1/25 Under RCW 49.78.220(1 )(a), "an employee is entitled to a total oftwelve workweeks of leave during any twelve-month period
. . . [b]ecause ofthe birth of a child ofthe employee and in order to care for the child." Further, under RCW 49.78.300(1 )(a), "[i]t is unlawful for any employerto . . . [interfere with, restrain,
or deny the exercise of, or the attempt to exercise, any right provided under this chapter." As the trial court noted, Washington's leave statutes do not define the term "interference," and there are no Washington cases interpreting RCW 

### 49.78.300.71 Because thefederal Family Medical LeaveAct, 29 U.S.C. § 2615, contains identical language to Washington's statute, the trial court looked to federal authority for guidance. "Likethe Washington leave statute, the FMLA does not define 'interference.' However, Department of Labor regulations provide that interference with an employee's right includes not only refusing to 

### authorize FMLA leave butdiscouraging anemployeefrom using suchleave."72 Here, BPM did not prevent Brooks from taking maternity leave. Rather, the trial courtfound that Brooks voluntarily returned to work six weeks into her twelve week maternity leave: Ms. Brooks testified that she began working part time six weeks into hertwelve week maternity leave because Mr. Parfitt encouraged herto show 'she was back on track.' There is no evidence, however, that Ms. Brooks was coerced into coming back early. Rather, her email communications with BPM's human resources director show that she herselfwanted to return early. "I 

### 71 Clerk's Papers at 76. 72 id (citing Howard v. Millard RefrigeratedServs.. Inc.. 505 F. Supp. 2d 867, 881 (D. Kan. 2007); 29 C.F.R. § 825.220(b); Mardis v. Cent. Nat'l Bank &Trust of Enid. 173 F.3d 864 (10th Cir. 1999)).
25No. 69332-8-1/26

am excited to come back.
... Iwould love to perhaps start offone 

### day per week " Exhibit 117.[73] This finding is supported by substantial evidence as evidenced by Brooks's emails identified by the trial court. Thus, the trial court properly concluded that BPM did not interfere with Brooks's right to maternity leave. Brooks does not provide any authority to give "interfere" a different meaning than what the federal regulation provides. Thus, her arguments about the type of interference she experienced during her maternity leave are not persuasive. SANCTION AND NEW JUDGE Lori Haskell, Brooks's counsel, argues that the trial court improperly imposed a sanction against her for contacting a witness without counsel present. Because the issue of sanctions is not ripe for review, we decline to address it. Here, the imposition of sanctions is not final. Infact, the court suspended the sanctions imposed during trial when itenteredjudgment. Ifthe trial court decides to impose sanctions at a later date, Haskell may raise her claim at that 

### point.74 Brooks moved to supplement the record with a document regarding the witness at issue. Because we do not address this issue, we deny the motion.

73 Clerk's Papers at 76-77. 74 See, e.g.. State v. Langland. 42 Wn. App. 287, 292, 711 P.2d 1039 (1985) (explaining that Donald Langland could raise a constitutional claim if he "should find, at some future time, that his suspended sentence is revoked and the life sentence imposed" but not until then).
26No. 69332-8-1/27 

### Brooks also sought a newjudge inthe event ofreversal and remand. Because we do neither, her request is moot. ATTORNEY FEES Brooks requests an award of attorney fees pursuant to chapter49.60 RCW. Because she does not prevail, she is not entitled to an award. We affirmthejudgment and deny an award offees to Brooks. We do not 

### reach the question ofsanctions because that question is not ripe for review. 

# fWX

WE CONCUR:



## _^J \o-V/»^ —J

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