Paul Wilkinson, App. V. Auburn Regional Medical Center, Et Al., Res.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
PAUL WILKINSON, 	)
Appellant, )
)
)
No. 70819-8-1
DIVISION ONE .^ •. 	' j	
v.
AUBURN REGIONAL MEDICAL CENTER
(ARMC), UNIVERSAL HEALTH
SERVICES (UHS), DR. DANIEL CLERC,
TRACY RADCLIFF, MELISSA
POLANSKY,
)
)
)
)
)
)
)
UNPUBLISHED OPINIO^ 	">§
CD 	r r ±Z
Respondents. )
)
)
FILED: September 15, 2014 	<
Appelwick, J. — Paul Wilkinson appeals the dismissal of his complaint
alleging that his former employer discriminated against him based on gender,
retaliated against him for union activity, and violated implied contract terms of his
employment independent of the union contract. We affirm.
FACTS
In 2005, Tracy Radcliff, a manager at Auburn Regional Medical Center's
Sleep 	Disorder Center (ARMC), 	hired 	Paul Wilkinson as a 	sleep technician.
Throughout Wilkinson's 	employment, 	the 	terms 	and 	conditions of the 	sleep
technician 	position were set by a 	series of collective bargaining agreements
between 	ARMC 	and 	the 	United 	Food 	and 	Commercial 	Workers 	Local 	21.
Melissa Polansky, the departmental lead who was also a member of the union,
completed evaluations of Wilkinson's job performance in 2006, 2007, and 2008.
Radcliff completed Wilkinson's performance evaluation in 2009 and placed him
on a performance improvement plan to address his complaining, his resistance to
Polansky's 	leadership 	and 	disciplinary 	counseling, 	and 	his 	excessive

No. 70819-8-1/2
absenteeism. After receiving complaints from doctors about his performance and
imposing 	a 	series 	of 	disciplinary 	actions, 	Radcliff 	terminated 	Wilkinson's
employment in October 2010.
In 2012, 	ARMC and the union arbitrated the grievance Wilkinson filed
challenging his termination. 	The arbitrator found that the period of time between
Wilkinson's 	final warning 	and 	his termination was too 	short to give 	him the
opportunity change his behavior to avoid termination, particularly when he had
responded 	to 	previous 	warnings 	with 	only 	"debate 	and 	discussion." 	The
arbitrator ordered reinstatement on a "last chance" basis. 	Wilkinson returned to
work briefly in June 2012. 	After Wilkinson committed certain performance errors
and 	arrived 	late 	for 	a 	mandatory 	meeting, 	Radcliff 	again 	terminated 	his
employment.
In September 2012, Wilkinson filed a pro se complaint against ARMC, its
parent company, Dr. Daniel Clerc, Radcliff, and Polansky, seeking $1 million in
damages, 	as well 	as 	back pay, front 	pay, 	lost benefits, 	interest, 	costs, 	and
punitive damages in the amount of one percent of the annual revenue of ARMC's
parent company. 	In his complaint, Wilkinson alleges that after his successful
challenge to a disciplinary action in April 2009, Polansky and Radcliff "labeled"
him as "'aggressive and insubordinate'" "simply because of his sex." 	He claims
Radcliff and Polansky then disciplined him with "little or no foundation" and gave
him 	negative 	reviews 	"without 	supporting 	factual 	evidence," 	while 	other
employees "committed the same or similar offenses and were never disciplined."
He also claims Radcliff terminated him without allowing him to "defend himself or

No. 70819-8-1/3
"improve or change his behavior," thereby, "[m]aking it clear that the decision to
terminate" 	was 	predetermined. 	He 	claims 	Polansky 	gave 	him 	the 	"silent
treatment," prevented him from performing his job "as proscribed by policy and
lab standards," and yelled at him.
The complaint states that Polansky and Radcliff "have treated the Plaintiff
and 	other 	males 	in 	their 	department 	to 	a 	different 	standard 	than 	female
employees in the same positions." 	The 	complaint also alleges violations by
management 	of 	the 	collective 	bargaining 	agreement 	with 	the 	union 	and
Wilkinson's "employment contract." 	Without reference to any particular cause of
action 	or 	statute, 	the 	complaint 	states 	the 	defendants 	"did 	engage 	in
discrimination, harassment, and retaliation against" him during his employment,
"which resulted in his wrongful termination from ARMC on October 21, 2010."
In May 2013, ARMC filed a motion to dismiss under CR 12, or in the
alternative for summary judgment under CR 56. 	In July, the trial court granted
the motion in part by (1) ordering Wilkinson to serve a summons on certain
defendants within 45 days; (2) dismissing with prejudice claims based on his
requests for his personnel file and payroll records; (3) dismissing with prejudice
claims challenging individual written disciplinary notices issued prior to his initial
termination; (4) dismissing with prejudice claims related to his 2010 grievance,
the 2012 arbitration, and the arbitrator's decision; (5) dismissing with prejudice
claims 	against 	the 	nonparty 	new 	owner 	of ARMC; 	(6) dismissing without
prejudice all 	claims 	relating 	to 	his 	2012 	termination 	and 	his subsequent
grievance; and (7) reserving ruling on remaining claims of gender discrimination,

No. 70819-8-1/4
harassment, 	or 	retaliation 	under the Washington 	Law 	against 	Discrimination
(WLAD), chapter 49.60 RCW, and Title VII of the Civil Rights Act of 1964 (Title
VII).
After additional briefing and argument, the court dismissed with prejudice
Wilkinson's claims of gender discrimination and retaliation under the WLAD and
Title VII, as well as all claims of violations of the National Labor Relations Act
(NLRA), 29 U.S.C. §§ 151-169, in an order entered on August 9, 2013.
Wilkinson appeals.
DISCUSSION
We review de novo both a summary judgment order and the propriety of a
trial court's dismissal of an action under CR 12(b)(6). 	Lam v. Global Med. Svs.,
Inc.. 127 Wn. App. 657, 661 n.4, 111 P.3d 1258 (2005); Dave Robbins Constr.,
LLC v. First Am. Title Co.. 158 Wn. App. 895, 899, 249 P.3d 625 (2010). 	In
reviewing 	a 	summary 	judgment 	order, 	we 	view the 	facts 	and 	reasonable
inferences in the light most favorable to the nonmoving party. Lam. 127 Wn. App.
at 661 n.4. 	We may affirm an order granting summary judgment if there are no
genuine 	issues of material fact for trial 	and 	the 	moving 	party is entitled to
judgment as a matter of law. 	CR 56(c). 	If materials "outside the pleadings are
presented to and not excluded by the court," a CR 12(b)(6) motion is treated as a
summary judgment motion under CR 56. 	CR 12(b)(6).
Wilkinson challenges the August 9 order, claiming the trial court erred in
granting summary judgment on his WLAD and NRLA claims and failed to enter
judgment on his implied contract claim.

No. 70819-8-1/5
I. 	WLAD
The WLAD prohibits an employer from discriminating on the basis of sex.
RCW 49.60.180. 	A plaintiff suffers sex discrimination when he or she is treated
less favorably than other similarly situated employees because of his or her
gender. 	Shannon v. Pay 'N Save Corp., 104 Wn.2d 722, 726, 709 P.2d 799
(1985), abrogated on other grounds by Blair v. Wash. State Univ.. 108 Wn.2d
558, 740 P.2d 1379 (1987). 	In a discrimination case in which there is no direct
evidence or admission of discrimination, a plaintiff can proceed only by showing
facts sufficient to create an inference of discrimination. 	Hill v. 	BCTI 	Income
Fund-I. 144 Wn.2d 172, 179-80, 23 P.3d 440 (2001), overruled on other grounds
by McClartv v Totem Elec. 157 Wn.2d 214, 137 P.3d 844 (2006).
To create the inference of discrimination required for a prima facie case, a
plaintiff must show that he or she belongs to a protected class and was treated
less favorably in the terms or conditions of employment than a similarly situated,
nonprotected employee who does substantially the same work as the plaintiff.
Washington 	v. Boeing Co., 	105 Wn. App. 1, 13, 19 P.3d 	1041 (2000). 	In
discrimination cases, the plaintiff must establish specific and material facts to
support each element of a prima facie case. 	Marouis v. Citv of Spokane. 130
Wn.2d 97, 105, 922 P.2d 43 (1996). Mere opinions and unsupported, conclusory
allegations will not defeat summary judgment. 	Chen v. State. 86 Wn. App. 183,
190, 937 P.2d 612 (1997); Absher Constr. Co. v. Kent Sch. Dist. No. 415. 77 Wn.
App. 137, 141-42, 890 P.2d 1071 (1995).

No. 70819-8-1/6
If an employer responds to a prima facie case by articulating a legitimate,
nondiscriminatory 	reason 	for 	its 	actions, 	the 	employee 	resisting 	summary
judgment must produce evidence raising a genuine issue of material fact as to
whether the employer's reason is unworthy of belief or is mere pretext for what is
in fact a discriminatory purpose. 	Grimwood v. Univ. of Puget Sound. Inc.. 110
Wn.2d 355, 364, 753 P.2d 517 (1988). 	"'Speculation and belief are insufficient to
create a fact 	issue as to 	pretext. 	Nor can 	pretext be established 	by mere
conclusory statements of a plaintiff who feels that he has been discriminated
against.'" 	Hines v. Todd Pac. Shipyards Corp.. 127 Wn. App. 356, 372, 112 P.3d
522 (2005) (quoting McKev v. Occidental Chem. Corp.. 956 F. Supp. 1313, 1319
(S.D.Tex. 1997).
In moving for summary judgment, ARMC presented admissible evidence
to 	demonstrate 	that 	Radcliff disciplined 	and 	ultimately terminated 	Wilkinson
based on his job performance, insubordination, and attendance issues. 	ARMC
offered records of written disciplinary actions against Wilkinson and Radcliff's
affidavit detailing her decision to hire Wilkinson in 2005, her disciplinary actions
against him, and her decision to terminate his employment in 2010 and 2012. 	In
addition, ARMC presented evidence to rebut Wilkinson's allegations that female
employees 	were 	not 	subject 	to 	discipline. 	In 	particular, 	ARMC 	offered
disciplinary records indicating that two female sleep technicians, CO.1 and B.R.,
received written discipline for lab policy and procedure violations and attendance
11t is not clear from the record below that the two employees consented to
the disclosure of information from their personnel files therefore we are redacting
their identities.

No. 70819-8-1/7
issues 	during 	Wilkinson's 	employment, 	and 	that 	Radcliff 	terminated 	B.R.'s
employment in August 2009 for her violation of the attendance policy.
Wilkinson fails to identify any admissible evidence in the record to create
an 	inference 	that 	he 	was 	treated 	differently than 	female 	sleep 	technicians.
According to Wilkinson, four female technicians, including CO. and B.R., failed
to follow lab policies and procedures and missed mandatory meetings without
receiving discipline. 	But, to establish these facts, 	he 	relies on documents he
created, such as journal entries, notes and letters to management, and lab notes,
all of which are based largely on speculation, hearsay, and his own unsupported,
self-serving conclusions and beliefs about what other people did or did not do,
often outside his presence.
Similarly, Wilkinson fails to identify any admissible evidence to support his
claim that ARMC's stated reasons for his discipline and termination are unworthy
of 	belief 	or 	mere 	pretext 	to 	disguise 	a 	discriminatory 	purpose. 	Despite
acknowledging that Radcliff both hired and fired him, Wilkinson offers no sensible
response to the resulting "strong inference that he . . . was not fired due to any
attribute" of which Radcliff was aware at the time she hired 	him. 	Griffith v.
Schnitzer Steel Indus.. Inc.. 128 Wn. App. 438, 453, 115 P.3d 1065 (2005).
Throughout his lengthy briefing, Wilkinson presents extended, passionate
discussion and argument to demonstrate his proper work performance and attack
the credibility and judgment of any person offering a differing or critical review.
Again, Wilkinson 	relies primarily on unsworn documents of his own 	creation
offering his personal interpretation of lab policies and procedures and his own

No. 70819-8-1/8
subjective justifications for his choices 	in performing his job duties. 	But, an
employee's disagreement with a supervisor's assessment of job performance
does 	not 	demonstrate 	pretext 	or 	"give 	rise 	to 	a 	reasonable 	inference 	of
discrimination." 	Parsons v. St. Joseph's Hosp. & Health Care Ctr.. 70 Wn. App.
804, 810-11, 856 P.2d 702 (1993).
In sum, 	because Wilkinson fails 	to 	identify any evidence to 	raise an
inference of sex discrimination or to create a material issue of fact regarding the
reason for his discipline and discharge, the trial court properly dismissed his
WLAD sex discrimination claim.
To the extent Wilkinson 	intended to assert a 	claim of a 	hostile work
environment based on sex discrimination or harassment, any such claim fails for
the same reason. 	The employee's gender must be the motivating factor in the
employer's treatment in order for a hostile work environment to exist. 	See Coville
v. 	Cobarc 	Servs.. 	Inc.. 	73 	Wn. 	App. 	433, 	438-39, 	869 	P.2d 	1103 	(1994).
Because 	Wilkinson 	fails 	to 	identify 	any 	evidence 	beyond 	speculation 	and
conclusory 	allegation 	to 	suggest 	that 	his 	sex 	was 	the 	motivating 	factor 	in
Radcliff's or Polansky's actions, summary judgment was proper.
II. 	Title VII
Although Wilkinson states for the first time in his reply brief that dismissal
of his Title VII claim "is also being appealed," he fails to cite to the record or
present 	any 	authority 	or 	argument to 	demonstrate 	error 	in the 	trial 	court's
dismissal 	of 	the 	claim. 	Given 	these 	failures, 	we 	need 	not 	address 	this
assignment of error. 	Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801,
8

No. 70819-8-1/9
809, 828 P.2d 549 (1992) (declining to address arguments raised for the first
time in a reply and assignments of error unsupported by citation to the record,
argument, or authority). 	Moreover, Wilkinson offers no reason to distinguish any
possible Title VII claim from his WLAD claims, which fail for a lack of evidentiary
support.2
III. 	Retaliation
Although Wilkinson did not clearly articulate the basis for any retaliation
claim in his complaint, he argues on appeal that ARMC violated the NLRA by
retaliating against him for reporting violations of the contract to the union and for
fighting every disciplinary action after April 2009. 	The record 	indicates that
Wilkinson filed a 	charge with the National Labor Relations Board (NLRB) in
March 2011 claiming that ARMC disciplined and discharged him in retaliation for
"his Union and/orprotected [sic] concerted activity." 	In a letter dated June 23,
2011, the NLRB regional director dismissed the charge and advised Wilkinson of
his right to appeal the dismissal to the Acting General Counsel of the NLRB.
Apparently, Wilkinson did not file such an appeal.
Citing San Diego Bldg. Trades Council v. Garmon. 359 U.S. 236, 244-45,
79 S. 	Ct. 	773, 	3 	L. Ed. 	2d 	775 	(1959), ARMC 	argues that the 	NLRB has
exclusive jurisdiction 	over controversies even 	arguably 	involving 	unfair labor
practices under the NLRA. 	The Garmon doctrine preempts claims based on a
state law that attempts to regulate conduct that is arguably either prohibited or
protected by the NLRA. 	Hume v. Am. Disposal Co.. 124 Wn.2d 656, 662, 880
Given this resolution we deny ARMC's motion to strike.
9

No. 70819-8-1/10
P.2d 988 (1994). Although exceptions exist and Washington courts are generally
prejudiced 	against 	preemption, 	because 	Wilkinson 	specifically 	identifies 	his
retaliation 	claim 	as 	a 	violation 	of the 	NLRB, 	and 	because 	he 	has failed 	to
articulate any challenge to federal preemption either below or on appeal, the trial
court did not err in dismissing his retaliation claim. 	Hume. 124 Wn.2d at 664; Kilb
v. First Student Transp.. LLC 157 Wn. App. 280, 293, 236 P.3d 968 (2010).
IV. 	Implied Contract
Finally, Wilkinson claims that the trial court failed to enter judgment on his
implied contract theory. 	But, in its August 9 oral ruling, the trial court indicated
that Wilkinson presented no evidence to establish the existence of a contract
between 	ARMC 	and 	Wilkinson 	independent 	of 	the 	union 	contract. 	And,
Wilkinson acknowledged on the record that the trial court was granting summary
judgment to ARMC on all claims or causes of action "within the contours of the
original complaint."
Nevertheless, 	in 	his 	briefing 	before this 	court, 	Wilkinson 	argues that
because 	the 	collective 	bargaining 	agreement does 	not specify 	policies 	and
procedures 	for 	job 	performance, 	investigation 	of 	complaints 	regarding
performance, and disciplinary decisions an implied contract must exist "between
the employer and employee for those things not covered" by the agreement.
Wilkinson fails to identify any authority or provide coherent argument to support
his claim.
Moreover, 	this 	claim 	is 	preempted 	by 	section 	301 	of 	the 	Labor
Management Relations Act (LMRA), which preempts state law breach of contract
10

No. 70819-8-1/11
claims involving job positions covered by a collective bargaining agreement.
Swinford v. Russ Dunmire Oldsmobile. Inc.. 82 Wn. App. 401, 411, 918 P.2d 186
(1996). 	To the extent Wilkinson believed ARMC had communicated some kind
of enforceable promise to him regarding his employment outside the terms of the
collective bargaining agreement, his remedy was to follow the grievance and
arbitration procedures in the union contract. 	]d_, at 412. 	Because he failed to do
so and because federal law "prevents both employers and employees alike from
'short-circuiting' an agreed-upon grievance procedure by resorting to the court
system," ARMC was entitled to dismissal of Wilkinson's implied contract claim as
a matter of law. 	Id.
Affirmed.
WE CONCUR:
\f'* cke^ 	%	^T^-4-
11