Opinion
No. 52030-0-I.
Filed: April 5, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Skagit County. Docket No. 02-2-00407-8. Judgment or order under review. Date filed: 02/13/2003. Judge signing: Hon. Michael E Rickert.
Counsel for Appellant(s), Joseph D. Bowen, Attorney at Law, 104 N 2nd St, Mount Vernon, WA 98273-5929.
Counsel for Respondent(s), James Ralph Dickens, Attorney at Law, 4400 Two Union Sq, 601 Union St, Seattle, WA 98101-2341.
Rachel J Drake, Miller Nash, 601 Union St. Ste 4400, Seattle, WA 98101-1367.
Susan Kathleen Stahlfeld, Attorney at Law, 601 Union St. Ste 4400, Seattle, WA 98101-1367.
All West/Select Sires terminated the employment of appellant Donald Olson, who was 61 years old at the time. Olson filed suit alleging wrongful discharge due to age discrimination. Because All West articulated legitimate non-discriminatory reasons for terminating Olson and he did not come forward with evidence showing these reasons to be a pretext for age discrimination, the trial court properly granted summary judgment in favor of All West.
We review orders granting summary judgment by engaging in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
Olson's cause of action for discrimination is based on the statute providing that it is an unfair practice for any employer: To discharge or bar any person from employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person.
RCW 49.60.180(2) (emphasis added). The term `because of age' means that age was a substantial factor in the employer's adverse employment decision. See MacKay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 898 P.2d 284 (1995).
To establish a prima facie case for age discrimination, a plaintiff must show that she or he: (1) was discharged from employment; (2) was between 40 and 70 years of age; (3) was performing satisfactorily at the time of discharge; and (4) was replaced by a younger person. Carle v. McChord Credit Union, 65 Wn. App. 93, 99, 827 P.2d 1070 (1992). But the four elements alone do not make a case sufficient for submission to the jury. Carle, 65 Wn. App. at 99. Rather, they create a rebuttable presumption requiring the defendant to come forward with a legitimate, nondiscriminatory reason for the adverse employment decision. Grimwood v. University of Puget Sound, 110 Wn.2d 355, 363-64, 753 P.2d 517 (1988). If the employer advances a legitimate reason for its action, the plaintiff must then produce evidence sufficient to support a finding that the employer's stated reasons are pretext — only then is there `for the first time — a reasonable inference of discrimination.' Carle, 65 Wn. App. at 102. At this point, the case must be submitted to the jury. Carle, 65 Wn. App. at 102. But where the plaintiff has produced no evidence from which a reasonable jury could infer that an employer's decision was motivated by an intent to discriminate, summary judgment is entirely proper. Kuyper v. State, 79 Wn. App. 732, 739, 904 P.2d 793 (1995).
The basic facts, in the light most favorable to Olson, establish his prima facie case. All West/Select Sires is an artificial insemination cooperative for cattle, headquartered in Burlington, Washington. All West employed Donald Olson as a comptroller beginning in 1974. Herald Catlin is All West's general manager since 1992. All West terminated Olson's employment in February, 2002. At that time, Olson was 61 years of age. A younger employee replaced Olson. During his tenure at All West, Olson received regular salary increases and bonuses.
In support of its motion for summary judgment, All West submitted declarations showing that management had viewed Olson's performance as unsatisfactory for several years prior to his termination, and that Olson had particular difficulties making the transition to new accounting software.
Olson's responsibilities as comptroller included preparing a monthly financial statement for review by Catlin, All West's executive marketing director Patrick Brown, and the executive board. Catlin requested that Olson complete the monthly financial statements by the 15th day of the following month. Olson stated in his deposition that he understood from an employee review conducted in 1996 that Catlin wanted the financial reports completed in a timely manner. Catlin approached Olson on the 15th of every month to check on the status of the financial statement for at least the two years leading up to Olson's termination. Olson admits that he did not usually get the financial reports done by the 15th.
In 2001, All West purchased a new software program from Allied Business Systems. Allied provided training sessions and technical assistance for the new software to assist All West in making the transition. Diane Saeger is the professional services manager for Allied and is a certified trainer in the new software. Saeger was responsible for instructing the training sessions attended by All West employees, including Olson. All West intended to `go live' with the new software on January 1, 2002.
Olson attended the preliminary training sessions provided by Allied in Kirkland, each session lasting three to four hours. Olson received certificates of completion for Systems Manager, Microsoft Windows, and Purchase Order training sessions. But Olson continued to use the old accounting system.
Catlin, with the approval of All West's executive board, made the decision to terminate Olson in 2002. Catlin met with Olson at the end of February and told him that All West was terminating his employment due to poor performance, and because Olson's failure to learn the new accounting system had caused increased billings for Saeger's time. Several employees who worked directly with Olson regarding accounting matters attested to Olson's poor job performance as comptroller and his resistance to the new software.Olson responded to All West's summary judgment motion and supporting materials with a single-spaced, 30-page personal affidavit.
Olson's affidavit gave a detailed assessment of his own performance, rating it as satisfactory or better for all his years with All West. He also submitted the three certificates of completion issued by Saeger for the training courses, a photocopy of a note from an All West employee stating that `everyone here feels really bad and will miss you', and three generic letters of appreciation issued with Olson's bonus checks from the years 1999-2001.
Clerk's Paper at 222.
The question in this appeal is whether these materials were sufficient to show that All West's stated reason for the termination — poor performance over many years, and a failure to cooperate with the new accounting system — could be seen by a factfinder as a pretext for age discrimination. Initially, All West contends — citing RAP 9.12 — that because Olson did not provide specific citations to his 30-page affidavit when presenting it below, the affidavit is not properly before this court on review. RAP 9.12 limits the appellate court on review to `evidence and issues called to the attention of the trial court.' Mithoug v. Apollo Radio of Spokane, 128 Wn.2d 460, 462, 909 P.2d 291 (1996) (emphasis in original). The purpose of this limitation is to give effect to the rule that the appellate court engages in the same inquiry as the trial court. Washington Fed'n of State Employees v. Office of Fin. Management, 121 Wn.2d 152, 157, 849 P.2d 1201 (1993). Pinpoint citations to the lengthy affidavit would have been helpful, but Olson's affidavit was called to the attention of the trial court, and so it is properly before us on review.
Another threshold issue is Olson's contention that summary judgment was improper because allegations supporting the motion for summary judgment were particularly within the knowledge of All West. The general rule is that once the moving party has moved for summary judgment, the non-moving party can no longer rely upon the pleadings but must come forward with evidence that would justify a trial. Felsman v. Kessler, 2 Wn. App. 493, 496, 468 P.2d 691 (1970). Olson would have us create an exception to this rule, and remand for trial in every case where the moving party has greater access to relevant facts than the non-moving party does. But each of the cases Olson cites as authority for this argument are applications of the general rule; they do not create an exception to it. In each case, the assertions of the moving party on a material issue of fact were contradicted or impeached by evidence on the record showing why the assertions could not be accepted at face value, and trial was necessary to allow a jury to assess the credibility of the witness. That is not the case here. The declarants were available for deposition. The cases cited by Olson do not relieve him of his obligation to come forward with evidence showing All West's assertions of fact to be unfounded, inaccurate, or lacking in credibility.
Michigan National Bank v. Olson, 44 Wn. App. 898, 723 P.2d 438 (1986); Beeler v. Hickman, 50 Wn. App. 746, 750 P.2d 1282 (1988); Hudesman v. Foley, 73 Wn.2d 880, 441 P.2d 532 (1968); Felsman v. Kessler, 2 Wn. App. 493, 468 P.2d 691, review denied, 78 Wn.2d 994 (1970).
All West submitted several written evaluations that Catlin kept for his own records. Because Catlin did not typically share those evaluations with Olson, Olson contends he is entitled to the inference that Catlin manufactured them in response to this suit. Olson appears to assume that All West was obliged to notify him of any negative evaluation and give him an opportunity to improve before being fired, but there is no evidence that All West had such an obligation. Therefore, that most of these evaluations were not shared with Olson does not mean they cannot be considered as evidence of management's assessment of his performance. And in any event, Olson did participate in one employee evaluation in 1996. The record of this employee performance review, signed by Olson, shows that at that time, Catlin evaluated Olson as unsatisfactory or insufficient in most areas. Unsatisfactory performance is a legitimate reason for termination.
Diane Saeger's declaration supports All West's claim that Olson's failure to learn the new software was ultimately the determinative factor in the company's decision to terminate him. Saeger states that Olson continued to require training throughout January and February of 2002 on very basic tasks in the new system, and that ultimately he did not learn. She states that despite her repeated explanations of how the system worked, Olson changed the accounts on several occasions, resulting in an improperly functioning system that required repair. In January of 2002, Saeger billed All West more than 150 hours at $150 per hour. She estimates that at least 85 percent of that time was spent trying to train Olson, correcting his mistakes, or performing basic comptroller functions that Olson did not do. Saeger estimates that she billed All West $19,000 for work that should have been done by Olson, or work that could have been prevented if Olson had learned the system. Failure to learn a new accounting system desired by management is a legitimate reason for termination.
Because All West has advanced legitimate, non-discriminatory reasons for terminating Olson and supported those reasons with facts, the burden shifts to Olson to produce evidence sufficient to support a finding that All West's stated reasons are pretext. To survive a motion for summary judgment, Olson must do more than express an opinion or make conclusory statements, Grimwood, 110 Wn.2d at 359-360.
An employee cannot create a pretext issue without some evidence that the employer's reasons for termination are unworthy of belief. Kuyper v. State, 79 Wn. App. 732, 738, 904 P.2d 793 (1995). The employer's stated reasons are unworthy of belief if they have no basis in fact; or if based in fact, are not what actually motivated the employer; or if they are insufficient to motivate an adverse employment decision. Chen v. State, 86 Wn. App. 183, 190, 937 P.2d 612, reconsideration denied, review denied, 133 Wn.2d 1020, 948 P.2d 387 (1997).
Here, Olson essentially argues that All West's stated reasons have no basis in fact. In his own estimation, his performance was always satisfactory or better. Regarding the financial statements, Olson states that Catlin never informed him that the 15th was a deadline, nor suggested that there would be consequences for not completing the financial statement on time. Olson maintains that he always understood the 15th to be a goal. He claims that he could not meet this goal because the completion of the financial statements depended on his receiving invoices from other offices. He argues that if All West really regarded the 15th as critical, Catlin would have subjected him to disciplinary action years ago.
Olson's view, that his performance was good and his delays were of no importance, does not undermine the factual basis for All West's assessment that he was performing poorly. Olson does not dispute that he was aware that Catlin wanted the financial statements by the 15th; Olson acknowledges he felt pressured to complete them by the 15th; and it is undisputed that he rarely if ever did so.
Olson claims he was learning the new software system `just fine.' In fact, he insists, he was very much looking forward to working on the new system, but had work left to complete in the old system from the previous accounting year. He states that he was willing to change, but his own priorities were to balance out the general ledger for the year 2001 before transferring information into the new system. The view that he was resisting the new system, Olson claims, was due to ignorance on the part of management. Olson, however, admitted in his deposition to making changes to the accounts Saeger set up. He does not deny that the changes he made were damaging and expensive to correct. Thus, he cannot show that management lacked a factual basis for complaining about his failure to master the new system.
Clerk's Papers at 192.
Clerk's Papers at 191-92.
Olson argues that the certificates of completion issued by Saeger prove that he was not unable or unwilling to learn the new system, and that Saeger's statements to the contrary are self-serving because she is straining to justify her own heavy bills to the company. Olson also maintains that All West has not produced any documentary evidence of the enormous amount of time Saeger allegedly spent training him. He disputes Saeger's estimate of time she spent working with Olson, as he does not remember spending much time with her.
Olson's assertion that Saeger actually spent very little time training him raises an issue of fact that is not material. All West's central point is that Olson did not learn the new system and in fact sabotaged it, whether deliberately or because of his ineptitude. Olson has failed to dispute this fact except with the conclusory assertion that he was learning the new system `just fine.'
In Chen, the plaintiff filed an employment discrimination claim when he was terminated after a six month probationary period. The employer moved for summary judgment after presenting evidence that Chen's performance was unsatisfactory. Chen responded that he was performing satisfactorily and presented his own self-evaluations and explanations for the cited examples of poor performance. This court found that the self-evaluations and explanations were insufficient to raise a genuine issue of material fact. `An employee's assertion of good performance to contradict the employer's assertion of poor performance does not give rise to a reasonable inference of discrimination.' Chen, 86 Wn. App. at 191.
The same is true here. Olson, like the plaintiff in Chen, has not shown that his employer lacked a factual basis for assessing his performance as poor. Rather, he seeks to minimize management's concerns and to shift responsibility for problems away from himself. Olson's affidavit does not support a reasonable inference that All West's stated reasons for terminating him were a pretext for age discrimination. Thus, summary judgment was proper.
Affirmed.
GROSSE and BAKER, JJ., concur.