Bruce Moret, Appellant, V. Breea Gale, Sherry Bennett, And YWCA Clark County, Respondents

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
BRUCE MORET, No. 47768-8-II
Petitioner,
v.
BREEA GALE, SHERRY BENNETT, YWCA
CLARK COUNTY,
UNPUBLISHED OPINION
Respondents.
JOHANSON, J. — Bruce Moret appeals the summary judgment dismissal of his gender
discrimination, disparate treatment, and wrongful termination claims against Young Women’s
Christian Association Clark County (YWCA). Moret argues that summary judgment is
unwarranted because genuine issues of material fact exist regarding his claims. Because Moret
fails to establish that any genuine issues of material fact exist, we affirm the summary judgment
dismissal.
Filed
Washington State
Court of Appeals
Division Two
October 25, 2016

No. 47768-8-II
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FACTS1
I. BACKGROUND FACTS
A. MORET’S EMPLOYMENT AND YWCA EMPLOYMENT POLICY
Starting in 2010, Moret worked for the YWCA in a senior management position. Moret’s
employment was “at-will.” Clerk’s Papers (CP) at 227. The YWCA employee handbook and his
hiring letter explained, “Any employee may be discharged at any time for any reason, unless such
reason is prohibited by law.” CP at 227. Moret signed the hiring letter. Moret reported to YWCA
Executive Director Sherri Bennett.
The YWCA employee handbook contains policies about “conflict and problem resolution”
and sexual harassment reporting and investigation. CP at 155. The conflict and problem resolution
section states in part that “[i]t is the policy of YWCA to promote the resolution of problem
situations in an informal discussion between the employer and her or his immediate supervisor.”
CP at 155. And the YWCA reporting and investigation policy for sexual harassment states in part
that “[i]nvestigations may include interviewing witnesses. . . . All complaints and investigations
will be kept as confidential as possible, and information will only be disclosed to those with an
authorized need to know.” CP at 149 (emphasis added).
In 2012, Bennett verbally communicated an additional policy on workplace relationships
to all senior management members of the YWCA, including Moret. Under the policy, any YWCA
employee in a position of formal leadership or role whose influence extends beyond program or
1 Moret’s statement of the case primarily presents facts not supported with record cites, facts not
contained in the record before the superior court, and irrelevant facts. Under RAP 9.12, we rely
on facts properly supported only by the record before the superior court.

No. 47768-8-II
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department direction must refrain from dating or becoming romantically involved with any staff
they supervise. Moret confirmed that he understood the policy applied to him, and he agreed to
abide by it.
B. KUSMIC’S SEXUAL HARASSMENT COMPLAINT
Barbara Kuzmic, a recently hired YWCA employee, reported to Moret for approval of
budget items. In March 2013, Kuzmic complained to her immediate supervisor, Natalie Wood,
that Moret was sexually harassing her in violation of the YWCA policy. Kuzmic also complained
to the YWCA Director of Human Resources, Breea Gale. That day, Bennett and Gale met with
Moret and told him an employee had accused him of sexual harassment. Moret was placed on
immediate paid administrative leave.
In April, Kuzmic submitted a written complaint to Bennett detailing Moret’s sexual
harassment toward her. Among other matters, the complaint stated that Moret asked Kuzmic out
to dinner shortly after she started at the YWCA and told her that they could not “tell anyone” and
“shouldn’t say anything” about getting dinner together.2 CP at 157. The complaint was not shared
with Moret.
2 Kuzmic’s complaint noted that Moret flirted with her over e-mail and detailed several incidents
when she and Moret spent time together outside of work. During each incident, Kuzmic reported
that Moret asked her questions about her personal life that made her feel uncomfortable and
vulnerable. Moret told Kuzmic that he wanted to date her several times despite Kuzmic telling
Moret that she was not interested in dating him or any co-worker. Moret persisted and asked if
they could “just lay together,” told Kuzmic that she had to change the way she dressed at work if
she would not date him, later made lewd noises when she would walk by and leered at her at work,
and once showed her that he had an erection. CP at 158.

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C. MITCHELL’S INVESTIGATION
Third-party investigator Dean Mitchell interviewed Kuzmic and Moret. Kuzmic reiterated
that Moret told her that she could not tell anyone they were getting dinner together outside of work.
Moret confirmed that he was told about the policy that he could not date YWCA employees.
Mitchell asked Moret about what he told Kuzmic:
MITCHELL Okay. But you’re not denying the fact that you told [Kuzmic] that
you probably shouldn’t tell Natalie that you guys were together?
Yes or no.
MORET Yes.
CP at 215.
After his investigation, Mitchell concluded that Kuzmic’s sexual harassment allegations
could not be substantiated, but that Moret’s actions were consistent with attempts to cultivate a
personal relationship with Kuzmic. Mitchell’s report also noted that Moret told Kuzmic that it
would “‘be easier if she did not tell anyone’ about their relationship.” CP at 225. Mitchell
concluded that this implied that Moret suspected his behavior was inappropriate and that Moret
violated Bennett’s instructions by not reporting his interactions with Kuzmic. Mitchell stated that
it was difficult to believe that Moret was trying to cultivate only a friendship with Kuzmic and
that, at the “very least, he used extremely poor judgment.” CP at 225.
D. MORET’S TERMINATION
Following the investigation, Bennett sent a termination letter and a summary of Mitchell’s
report to Moret. The letter noted that while it was unclear whether Moret sexually harassed
Kuzmic, their social interaction, and specifically his asking Kuzmic that she keep their interactions
a secret, were in opposition to the YWCA’s core values of respect and empowerment.

No. 47768-8-II
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E. MORET’S REPLACEMENT
After Moret’s termination, the YWCA hired a male accountant to temporarily fill Moret’s
position while they sought a permanent replacement. Another male was offered and accepted the
position, but resigned before starting. The position was then reclassified with reduced hours and
supervising responsibilities and was filled by a female.
II. PROCEDURAL HISTORY
A. MORET’S DISCRIMINATION, DISPARATE TREATMENT,
AND WRONGFUL TERMINATION COMPLAINT
In January 2014, Moret filed a complaint in superior court asserting gender discrimination,
disparate treatment, and wrongful termination. The complaint alleged that Moret was the only
individual subject to the verbal “dating rule,” that there was no “dating” policy in his employee
handbook, that Kuzmic was not reprimanded for making false accusations against him, that in
2010 there was a harassment cross complaint filed against two female management team members
who were given a meeting to resolve the issue and who were not terminated, that Bennett observed
romantic interactions between two other employees who were not then terminated, and that
YWCA management did not follow the YWCA’s policy on conflict resolution by allowing him to
respond to Kuzmic’s charges or to correct misstatements in Mitchell’s report. CP at 4.
B. YMCA’S SUMMARY JUDGMENT MOTION
The YWCA moved for summary judgment dismissal, asserting that Moret could not
establish the essential elements of his claims that included that (1) his termination resulted from
gender discrimination, (2) he received disparate treatment under the YWCA policies based on
gender, and (3) any exception to the Washington doctrine of at-will employment applied.
YWCA’s motion was supported by transcripts of Mitchell’s interviews with Kuzmic and Moret,

No. 47768-8-II
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Moret’s complaint, Mitchell’s report, the YWCA employee handbook, Moret’s offer and
termination letters, and a declaration from Bennett.
Bennett’s declaration stated that the workplace relationship policy applied to all senior
members of the YWCA management irrespective of gender. It was the YWCA’s policy not to
give an employee accused of sexual harassment a written copy of a complaint regardless of the
accused’s or accuser’s gender. Bennett did not reach any conclusions that Moret sexually harassed
Kuzmic, violated the workplace relationships policy, or dated Kuzmic, and those factors did not
determine her decision to terminate Moret. Bennett explained her reasons for firing Moret:
I terminated Mr. Moret specifically because I felt that his admission that he
requested that Ms. Kuzmic keep details of their relationship hidden from her
immediate supervisor, Natalie Wood, was in opposition to the YWCA’s core values
of respect and empowerment. I felt Mr. Moret exercised poor judgment to an extent
that fell below my expectations for senior YWCA Clark County management by
requesting a relatively new subordinate employee to be secretive and less than
candid with her supervisor.
CP at 140. She stated that she would have terminated any similarly situated employee for similar
behavior irrespective of gender.
C. MORET’S OPPOSITION TO SUMMARY JUDGEMENT
Moret opposed the motion for summary judgment by filing only an opposition
memorandum. Moret did not support his opposition memorandum with a declaration or other
admissible evidence. In his memorandum, Moret alleged YWCA terminated him to avoid
investigating whether Kuzmic made false accusations in violation of YWCA policy. Moret again
alleged that he was wrongfully terminated because Mitchell did not interview other employees
about the accusations and because Moret was not given the opportunity to review and dispute

No. 47768-8-II
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Kuzmic’s claims against him. Moret also asserted that he was given only one hour in the interview
with Mitchell to respond to nonspecific questions.
D. YMCA’S REPLY TO MORET’S OPPOSITION
The YWCA’s reply in support of their summary judgment motion noted that Moret did not
support his opposition with a declaration or other admissible evidence.
The superior court granted the YWCA’s motion for summary judgment.3 Moret appeals.
ANALYSIS
I. SUMMARY JUDGMENT DISMISSAL
Moret contends that the superior court erred by dismissing his claims on summary
judgment.4 We disagree.
A. STANDARD OF REVIEW AND RULES OF LAW
We review summary judgment decisions de novo. Scrivener v. Clark Coll., 181 Wn.2d
439, 444, 334 P.3d 541 (2014). Summary judgment is appropriate where the pleadings, admissions
on file, and affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law. CR 56(c).
3 The superior court considered the YWCA’s motion for summary judgment, the declaration of
Bennett with exhibits including the YWCA’s handbook, Kuzmic’s complaint, Moret’s hiring and
termination letters, the transcripts of Kuzmic’s and Moret’s interviews with Mitchell, the
declaration of YWCA’s attorney with Moret’s complaint as an exhibit, Moret’s opposition
memorandum, the YWCA’s reply in support of summary judgment, the YWCA’s attorney’s
additional declaration in support of summary judgment, and the YWCA’s addendum to their reply.
4 Moret also assigns error to the superior court’s denial of his motion for joinder of another lawsuit.
But Moret appeals only the May 29 summary judgment order and not the order denying joiner.
Further, Moret makes no argument regarding why the joinder was improperly denied. Thus, we
consider this issue no further.

No. 47768-8-II
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When evaluating summary judgment motions in employment discrimination cases,
Washington courts have largely adopted the federal burden-shifting scheme announced in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
Scrivener, 181 Wn.2d at 445. Under the first prong of the McDonnell Douglas framework, a
plaintiff bears the initial burden of establishing a prima facie case of discrimination with specific
and material facts, which creates a presumption of discrimination. Scrivener, 181 Wn.2d at 446;
Fulton v. Dep’t of Soc. & Health Servs., 169 Wn. App. 137, 147, 279 P.3d 500 (2012). Second,
once the plaintiff establishes a prima facie case, the burden of production shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the adverse employment action. Scrivener,
181 Wn.2d at 446. Third, if the employer meets this burden, then the plaintiff must produce
sufficient evidence that the employer’s alleged nondiscriminatory reason for the employment
action was a pretext. Scrivener, 181 Wn.2d at 446. If the plaintiff fails to establish a prima facie
case, the moving party is entitled to judgment as a matter of law. Fulton, 169 Wn. App. at 148.
A material fact is one that could affect the litigation’s outcome. Baldwin v. Silver, 165 Wn.
App. 463, 472, 269 P.3d 284 (2011). A plaintiff opposing summary judgment must set forth
specific evidentiary facts by affidavits, interrogatories, depositions, or other admissible
documentation and cannot meet its burden by relying on mere allegations or denials of a pleading.
CR 56(e). Further, a plaintiff cannot meet its burden by relying on speculation, argumentative
assertions that unresolved factual issues remain, or in having its affidavits considered at face value.
Retired Pub. Emps. Council of Wash. v. Charles, 148 Wn.2d 602, 612, 62 P.3d 470 (2003).
We must consider the facts in the light most favorable to the nonmoving party and the
motion should be granted only if, from all the evidence, reasonable persons could reach but one

No. 47768-8-II
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conclusion. Failla v. FixtureOne Corp., 181 Wn.2d 642, 649, 336 P.3d 1112 (2014), cert. denied,
135 S. Ct. 1904 (2015).
B. GENDER DISCRIMINATION AND DISPARATE TREATMENT
Moret argues that the superior court erred by granting the YWCA’s motion for summary
judgment. But Moret does not state which material facts are genuinely in dispute. Thus, this
argument fails.
1. PRINCIPLES OF LAW
Both the United States Civil Rights Act of 1964 and Washington law prohibit
discrimination in the form of discharging an individual based on gender. 42 U.S.C. § 2000e-
2(a)(1); RCW 49.60.030. “To establish a prima facie gender discrimination case, a plaintiff must
show that she: (1) is a member of a protected class; (2) was discharged; (3) was doing satisfactory
work; and (4) was replaced by a person of the opposite sex or otherwise outside the protected
group.” Domingo v. Boeing Emps.’ Credit Union, 124 Wn. App. 71, 80, 98 P.3d 1222 (2004). A
prima facie showing of disparate treatment requires showing the first three elements of a gender
discrimination case, as well as a fourth element of different treatment than persons of the opposite
sex who are otherwise similarly situated. Domingo, 124 Wn. App. at 80.
2. GENDER DISCRIMINATION CLAIM
Even assuming without deciding that Moret could establish the first three elements of a
prima facie gender discrimination case, he cannot meet the fourth element that he was replaced by
a female. Moret fails in his complaint and opposition memorandum to even allege that he was
replaced by a female. And the undisputed evidence shows that two males succeeded Moret. Thus,
Moret did not produce specific evidentiary facts to establish the prima facie case of gender

No. 47768-8-II
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discrimination and this claim fails as a matter of law. Fulton, 169 Wn. App. at 147-48; Domingo,
124 Wn. App. at 80-81 (holding female plaintiff could not meet prima facie burden of gender
discrimination where she was replaced by a woman in her former role).
3. DISPARATE TREATMENT CLAIM
Regarding his disparate treatment claim, Moret has not set forth facts establishing that
similarly situated female employees at the YWCA were treated differently under YWCA policy.
Moret’s complaint alleges that he was the only individual subject to the no-dating rule and that the
YWCA handbook did not have a no-dating policy that applied to others. But Bennett’s undisputed
declaration states that the policy applied to everyone in management positions at the YWCA.
Moret cannot rely on the mere allegations in his complaint or opposition memorandum to establish
that he was the only employee subject to the no-dating rule. CR 56(e); Charles, 148 Wn.2d at 612.
Moret offered no specific evidence to dispute Bennett’s declaration that the policy was not
selectively applied, and thus he did not establish a genuine issue of fact regarding the disparate
application of the dating policy.
Moret’s complaint also alleges that Kuzmic was not reprimanded for making false
accusations of sexual harassment against YWCA policy, while he was terminated for violating
YWCA policy. Disparate treatment must be established by a showing of different treatment of
individuals who are otherwise similarly situated. Domingo, 124 Wn. App. at 80. But Bennett’s
undisputed declaration states that Moret and Kuzmic were not similarly situated employees:
Kuzmic was a subordinate who reported directly to Wood and to Moret for financial approval of
budget items, while Moret was a senior manager who reported to executive director Bennett.

No. 47768-8-II
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Moret failed to file a declaration to dispute Bennett’s declaration. Thus, the undisputed evidence
is that Kuzmic and Moret were not similarly situated.
Lastly, Moret’s complaint alleges that there was a cross complaint of harassment and
discrimination filed between two female management members, but that those individuals were
given a meeting to resolve the issue and were not terminated. And Moret alleges that Bennett
observed romantic interactions between two other employees who were not then terminated.
But Moret does not offer any evidence by way of declaration or other admissible evidence
to dispute Bennett’s declaration stating that the “no dating” policy was never selectively applied
or enforced based on gender and that she would have terminated any similarly situated senior
management employee for behavior akin to Moret’s, irrespective of gender. Moret offers no
admissible evidence that the individuals involved in the incidents he recounts were similarly
situated members of senior management or that either of these instances involved one employee
encouraging a subordinate to keep a secret from her supervisor in order to not potentially violate
YWCA policy as Moret did. Moret also does not state that he witnessed these events in a sworn
statement. Again, Moret cannot rely on mere allegations or speculation that the YWCA applied
their policies differently with respect to other employees based on gender. CR 56(e); Charles, 148
Wn.2d at 612.
In sum, Moret did not meet his burden as the nonmoving party to set forth specific, material
facts to dispute YWCA’s evidence that a male replaced him and that the YWCA did not treat
similarly situated persons of the opposite gender more favorably or apply its workplace policies
discriminately. Because Moret fails to establish a prima facie case of gender discrimination or

No. 47768-8-II
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disparate treatment, we conclude that YWCA was entitled to summary judgment with respect to
these claims.
C. WRONGFUL TERMINATION
Moret argues that the superior court erred by granting the YWCA’s motion for summary
judgment, but he fails to state which material facts are genuinely disputed regarding his wrongful
termination claim. Again, Moret’s argument fails.
1. PRINCIPLES OF LAW
Subject to exceptions, under the common law at-will employment doctrine an employer
may discharge an at-will employee with or without cause. Roe v. TeleTech Customer Care Mgmt.
(Colo.) LLC, 171 Wn.2d 736, 754-55, 257 P.3d 586 (2011).
2. MORET’S WRONGFUL TERMINATION ALLEGATIONS
Moret alleges in his complaint that he was wrongfully terminated because the YWCA
lacked sufficient grounds to justify termination.5 He argues this is so in part because YWCA
management did not determine the veracity of Kuzmic’s statements by interviewing other
5 Moret cites to Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 978, 108 S. Ct. 2777, 101 L.
Ed. 2d 827 (1988), for the proposition that the YWCA’s actions in this case were “uncommon”
because the YWCA suspended him based on Kuzmic’s accusations, terminated him for other
reasons, and protected Kuzmic by not disclosing her complaint. It is unclear how this argument
establishes that Moret’s termination from at-will employment was wrongful. Regardless, Watson
does not address Moret’s proposition. Watson primarily addresses whether a disparate impact
analysis—an analysis that balances trend data submitted by employers and employees as to
whether or not a practice has a discriminatory effect—can be used to evaluate whether subjective
promotion systems are discriminatory. See 487 U.S. 986-1000.

No. 47768-8-II
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employees or by allowing Moret to see Kuzmic’s complaint.6 Second, Moret alleges in his
complaint that he was wrongfully discharged because the YWCA management did not follow the
handbook policy on conflict and problem solving. These allegations appear to assert that YWCA
policy entitled Moret to specific treatment, thus establishing an exception to his at-will status, but
Moret failed to file a declaration to support these allegations.
In her declaration, Bennett stated that Moret was terminated because she felt “Moret
exercised poor judgment to an extent that fell below [her] expectations for senior YWCA Clark
County management by requesting a relatively new subordinate employee to be secretive and less
than candid with her supervisor.” CP at 140. Moret did not file an affidavit or other admissible
evidence to dispute Bennett’s reasons for firing him. In fact, Moret admitted that he told Kuzmic
not to tell her supervisor that he and Kuzmic were going to dinner together.7 Moret also does not
6 Moret cites to Price Waterhouse v. Hopkins, 490 U.S. 228, 230, 109 S. Ct. 1775, 104 L. Ed. 2d
268 (1989), for the proposition that YWCA was “ethically bound to determine the veracity of
Kuzmic’s statements and they failed to do so.” Br. of Appellant at 15. Moret does not analyze or
offer legal argument on how YWCA’s ethical obligations establish that Moret’s termination was
wrongful. Price Waterhouse has been superseded, and it primarily addressed the balance of the
burden on an employee and an employer to make a showing that gender was or was not the basis
for a denial of a promotion. See 490 U.S. at 239-59. Moret also cites to MacDonald v. Korum
Ford, 80 Wn. App. 877, 912 P.2d 1052 (1996), in support of his assertion that YWCA could have
determined whether Kuzmic’s allegations were true by interviewing additional YWCA employees
or allowing Moret to see Kuzmic’s complaint. MacDonald does not include any analogous facts
that lend credence to Moret’s assertion; rather, it analyzed whether an attorney lacked a factual
basis for pursuing a hostile environment claim and wrongful discharge claim such that sanctions
were warranted. See 80 Wn. App. 880-94.
7 Moret also argues that his comment to Kuzmic was taken out of context and that he was actually
suggesting that Kuzmic not tell her supervisor, Wood, about a conversation that he and Kuzmic
had relating to his suggestions to improve morale in Kuzmic’s department. But Mitchell directly
asked Moret if he told Kuzmic that she “probably shouldn’t tell [Wood] that you guys were
together,” and Moret stated that he was not denying he said that. CP at 215. And Moret did not
submit an affidavit or other evidence to support his assertions or to refute Bennett’s declaration or
the transcript of Moret’s interview with Mitchell.

No. 47768-8-II
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dispute that his employment at the YWCA was at will. Indeed, he acknowledged his at-will
employment status when he signed his hiring letter. Because Moret was an at-will employee, the
YWCA did not need “sufficient grounds” nor any grounds to terminate him unless an exception to
the at-will doctrine applies. Roe, 171 Wn.2d 754-55.
3. MORET ARGUES AN EXCEPTION TO AT-WILL EMPLOYMENT APPLIES
Moret appears to argue that the YWCA handbook made promises about its conflict
resolution process and sexual harassment investigation procedures that modified his “at-will”
employment such that an exception applies. We disagree.
a. PRINCIPLES OF LAW
An exception to at-will employment arises when an employer issues an employment
manual or handbook to the employee that contains promises of specific treatment in specific
situations regarding termination, thereby contractually modifying the at-will relationship and
creating the right to sue if the employer fails to adhere to those promises. Thompson v. St. Regis
Paper Co., 102 Wn.2d 219, 228-29, 233, 685 P.2d 1081 (1984). In order to prove this exception
applies, “the employee has to establish such a promise contained in an employee manual or
handbook or the like.” DePhillips v. Zolt Constr. Co., 136 Wn.2d 26, 36, 959 P.2d 1104 (1998).
b. CONFLICT AND PROBLEM RESOLUTION POLICY
The YWCA employee handbook “conflict and problem resolution” section states in part
that “[i]t is the policy of YWCA to promote the resolution of problem situations in an informal
discussion between the employee and her or his immediate supervisor.” CP at 155. And the
YWCA reporting and investigation policy for sexual harassment states in part that
“[i]nvestigations may include interviewing witnesses. . . . All complaints and investigations will

No. 47768-8-II
15
be kept as confidential as possible, and information will only be disclosed to those with an
authorized need to know.” CP at 149 (emphasis added).
c. NO SPECIFIC PROMISE
Neither of these provisions contains promises of specific treatment that Moret seems to
assert he was entitled to. The conflict and problem solving policy does not make a specific promise
that Moret was entitled to an informal discussion with YWCA management regarding termination
or a sexual harassment charge, thereby creating a right to action in the event such a meeting was
not provided. And the sexual harassment policy states that the investigation “may” involve
interviewing witnesses, but does not guarantee that employees besides the accused and accuser
will be interviewed. Additionally, the sexual harassment policy states that the investigation will
be kept as confidential as possible, thus undermining Moret’s claims that he was entitled to a copy
of Kuzmic’s complaint. Moret has not established that the handbook contained promises of
specific treatment regarding sexual harassment allegations or termination, thereby contractually
modifying his at-will status at the YWCA and creating the right to sue if the YWCA failed to
adhere to those promises. Thus, his argument fails.
We conclude that Moret has not established any genuine issues of material fact concerning
his status as an at-will employee. He has also failed to establish that any exceptions to the at-will
doctrine apply. Thompson, 102 Wn.2d at 228-29; DePhillips, 136 Wn.2d at 36. Thus, we conclude
that Moret’s claim for wrongful termination was properly dismissed on summary judgment.

No. 47768-8-II
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We affirm the superior court’s summary judgment dismissal of Moret’s claims.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
JOHANSON, J.
We concur:
BJORGEN, C.J.
LEE, J.