Opinion
No. 34741-5-II.
May 1, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-2-09221-9, Serjio Armijo, J., entered March 24, 2006.
Affirmed by unpublished opinion per Van Deren, J., concurred in by Houghton, C.J., and Penoyar, J.
Kristi Solt appeals the trial court's order, granting summary judgment to Annie Wright School, Stanley Cummings, and Paul Manning. Solt contends that genuine issues of material fact exist with respect to her claims of hostile work environment, retaliation, and negligent supervision. We disagree and affirm.
FACTS
Annie Wright School (School) is a private institution with approximately 430 students. The School is co-educational from pre-kindergarten through grade 8 and a girls' day and boarding school for grades 9 through 12. Kristi Solt joined the School's faculty in July 1995 as Director of Residence and Activities. This position required her to live on campus. In the same year, Stuart Selleck began work in the School's food service department. Selleck later transferred to the School's maintenance department under Paul Manning, Director of Security and Maintenance. Solt and Selleck married in March 1996 and, thereafter, both resided on campus.
Solt and Selleck separated in December 1999, and Selleck moved from their campus residence. In June 2000, Solt asked Manning if he could change the locks on her door to keep Selleck away from her residence. Manning responded by letter:
If needed I can make your apartment off limits to [Selleck] — completely or with qualifications that you are comfortable with. [Selleck] would need to be aware of this arrangement and the consequences that he would face for violating its terms. Again, this level of action involves more people who need to know than just the three of us.
I encourage you not to downplay your fears with the intent of avoiding unpleasantness. If you have concerns for your privacy, safety, and security in this building then some level of action is warranted. I am committed to taking the level of action necessary to insure your well being and allay your fears.
Clerk's Papers (CP) at 190. But Solt replied to Manning the same day with another letter: I am asking you to disregard our previous conversation. I will not put you in a situation asking you to compromise your friendship or working relationship with [Selleck]. Nor am I willing to jeopardize [Selleck's] position or my "relationship" with him (or his children). No new locks are necessary and I will handle anything that needs to be dealt with from this point forward.
CP at 192. Thereafter, their relationship was "difficult but OK," until August 2000 when Selleck's daughter moved in with Solt to attend the School. CP at 263.
In April or May 2001, shortly before Selleck's daughter left for the summer following her year in residence with Solt, Selleck began harassing Solt with frequent telephone calls. Selleck's harassing telephone calls increased during June and July. Solt discussed Selleck's behavior with Susan Bauska, her supervisor, but did not expect or ask Bauska to take any action. On July 1, Stanley Cummings became the new Head of School. Bauska reported Selleck's behavior to Cummings. Solt obtained a temporary protection order against Selleck on July 13. Patti Spaulding, a School employee, witnessed Selleck yelling and making obscene gestures at Solt and reported this to Manning on July 22. On July 27 Solt obtained a permanent protection order that restrained Selleck from contacting her and excluded him from the workplace except during the hours he was scheduled to work.
Three days later, Solt told Manning, Cummings, and Bauska about the protection order. Solt wanted Manning to tell Selleck to stop contacting her, but she did not want Selleck fired. Manning and Cummings met with Selleck and laid down guidelines he was to follow to remain employed with the School.
On August 12, as Solt approached her vehicle after work, Selleck yelled and made lewd gestures at her. The next day she had Selleck arrested for violating the protection order and told Manning and Cummings about Selleck's conduct. She then allowed Cummings to hear several harassing messages Selleck had left on her cell phone. Cummings decided to terminate Selleck's employment, after he realized that Selleck had used the School's telephone to make these calls,
Solt told Cummings that she did not want Selleck fired and Cummings replied that the situation was out of her hands. Cummings terminated Selleck's employment on August 16, by allowing him to resign. Manning agreed with Cummings' decision, but submitted his resignation as Director of Maintenance and Security because he was upset about the situation. Cummings did not act on Manning's resignation.
Selleck continued to send harassing messages to Solt by telephone and email until he moved to Texas in October. Solt told Cummings about these messages. He replied that Selleck's actions no longer required a response from the School.
Although there is no record, other than Solt's own declaration, about this communication, we construe the facts in a light most favorable to Solt, the nonmoving party. City of Spokane v.
Solt filed for divorce on October 5, 2001. During the following months, Manning expressed concern about Solt's overnight visitors. He reported to Cummings that a vehicle, not registered to an employe, was frequently parked by the School for long periods of time. The vehicle belonged to Angela Morrison. Manning was concerned that Morrison often stayed overnight at Solt's apartment without checking in with the maintenance and security personnel.
Solt complained to Bauska that Manning was spying on her. According to Solt, Bauska stated that Manning was making lewd allegations about Solt's sexual orientation. But Bauska testified at deposition that she never heard Manning make such allegations. On December 7, Bauska told Solt that Manning's concern was whether she had a live-in guest at her apartment. Solt denied it, and Bauska reported their conversation to Cummings.
On January 8, 2002, because of Manning's allegations, Solt asked Bauska, in writing, for permission to reside off-campus and to change her job description. In February, Solt wrote to Cummings, describing Selleck's harassment and arguing that Manning defamed her.
Manning expressed his displeasure about Selleck's dismissal in a February 14 letter to Cummings and Bauska, stating that he believed that Selleck was subject to summary dismissal because Selleck was a maintenance worker rather than a professional staff member. Manning Spokane County, 158 Wn.2d 661, 671, 146 P.3d 893 (2006). also stated that Solt had an unreported overnight guest on a number of occasions. He copied his letter to both Solt and Selleck. On February 19, Cummings asked Solt and Manning to move forward from their dispute for the sake of the School and the students. In an attempt to address Manning's security concerns, Cummings stated:
[Manning] and his department are charged with the responsibility of providing and maintaining the front line of the security effort. . . . All of us rely on [Manning's] judgment to maintain that line, and it is often a matter of judgment, rather than a matter of policy, that provides the ultimate protection. [Manning] has expressed a real concern with controlling access to the building after the business day. With 60 girls and 9 residences along with their guests coming and going, separating the invited from the uninvited becomes problematic. To allow Security to provide protection without intruding upon the lives of people living in the building is everyone's goal. To that end, we will work toward formalizing what is now an informal procedure for guests signing into and out of the building after hours.
CP at 227.
In March, Selleck emailed harassing statements about Solt to Solt and other staff members. Cummings apologized to Solt and the other recipients and had the School's attorney send Selleck a cease and desist letter. Cummings also sent a censure letter to Manning telling him that he "crossed over the line" in expressing his concerns. CP at 234. With Bauska's help, Solt received a pay raise and permission to move off campus. She moved to an off-campus residence in June.
Jayasri Ghosh replaced Cummings as Head of School in July 2002. Ghosh eliminated Solt's position as part of the School's restructuring based on budgetary concerns in early 2004.
On August 24, 2004, Solt filed her first amended complaint against the School, Cummings, and Manning. The trial court granted summary judgment in favor of all defendants.
We requested supplemental record and additional briefing on whether the statute of limitations barred us from considering a substantial portion of the facts. In their supplemental briefs, the parties agree that the statute of limitations does not apply. For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first. If service has not been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served personally, or commence service by publication within ninety days from the date of filing the complaint.
RCW 4.16.170. Because Solt successfully served her amended complaint within the 90-day tolling period under RCW 4.16.170, the School, Cummings, and Manning concede that this "lawsuit commenced, for purposes of the statute of limitations, on June 24, 2004," not on August 24, 2004, as they claimed in their original briefs. Supp. Br. of Resp't at 1.
ANALYSIS
I. Standard of Review
In reviewing a grant of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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); Marincovich v. Tarabochia, 114 Wn.2d 271, 274, 787 P.2d 562 (1990).
We "consider the evidence and the reasonable inferences therefrom in the light most favorable to the nonmoving party." Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995). "After the moving party submits adequate affidavits, the nonmoving party must set forth specific facts [that] sufficiently rebut the moving party's contentions and disclose the existence of a genuine issue as to a material fact." Meyer v. Univ. of Washington, 105 Wn.2d 847, 852, 719 P.2d 98 (1986). A nonmoving party, however, "may not rely on speculation, argumentative assertions that unresolved factual issues remain or in having its affidavits considered at face value." Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986).
Where reasonable minds could reach but one conclusion from the admissible facts in evidence, summary judgment is appropriate. LaMon v. Butler, 112 Wn.2d 193, 199, 770 P.2d 1027 (1989). "In order for a plaintiff alleging discrimination in the workplace to overcome a motion for summary judgment, the worker must do more than express an opinion or make conclusory statements." Marquis v. City of Spokane, 130 Wn.2d 97, 105, 922 P.2d 43 (1996).
II. Hostile Work Environment
Solt contends that the School, Cummings, and Manning are "liable for violations of the Washington Law Against Discrimination [WLAD]." Br. of Appellant at 27. She asserts that Selleck and Manning created a hostile work environment imputable to Cummings and the School. WLAD, chapter 49.60 RCW, protects employees from sexual harassment; one form of sexual harassment is the creation of a hostile work environment. Former RCW 49.60.010, .030, .180 (1997); Coville v. Cobarc Servs., Inc., 73 Wn. App. 433, 438, 869 P.2d 1103 (1994). "Sexual harassment in the form of a hostile work environment constitutes sex discrimination." Estevez v. Faculty Club of Univ. of Washington, 129 Wn. App. 774, 794, 120 P.3d 579 (2005).
To establish a prima facie hostile work environment claim, the employee must prove that (1) "the harassment was unwelcome," (2) "the harassment was because of sex," (3) "the harassment affected the terms and conditions of employment," and (4) "the harassment is [imputable] to the employer." Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985).
Solt argues that Selleck's frequent telephone calls, emails, and public displays and Manning's "overly intensive scrutiny" and "persistent reporting of untrue or wildly hurtful accusations" constitute unwelcome harassment. Reply Br. of Appellant at 4. The question is whether Selleck's and Manning's conduct satisfy the other three required elements.
A. Motivated by Gender
Sex discrimination occurs if the employee would not have been "singled out and caused to suffer the harassment if the employee had been of a different sex," i.e., if the gender of the person subjected to the harassment motivated the unlawful discrimination. Glasgow, 103 Wn.2d at 406. "That the [l]egislature intended the word `sex' to mean a classification rather than activity of a sexual nature generally is apparent from its placement in a list of other classifications according to which human beings can be characterized, e.g., age, race, color, creed, marital status, and national origin." John Doe v. Dep't of Transp., 85 Wn. App. 143, 149, 931 P.2d 196 (1997). The employee has the burden of producing competent evidence that gender was the motivating factor for the harassing conduct. Doe, 85 Wn. App. at 149.
No one disputes that Selleck's behavior was reprehensible, but Solt fails to produce evidence that it occurred because of her gender. It is clear that Selleck's conduct arose during the course of their separation and divorce and was based on their prior marital relationship. Solt does not cite and, we did not find, any authority applying chapter 49.60 RCW to the often harsh and critical statements of spouses involved in a dissolution action. Thus, unless Selleck's behavior was imputable to Cummings or the School, his conduct cannot serve as a basis of an unlawful discrimination claim in violation of WLAD.
Solt contends that Manning harassed her in two ways. First, Manning reported to Cummings that Morrison's vehicle was frequently parked by the School and that Morrison often stayed overnight at Solt's apartment without checking with the School's security personnel. Manning does not deny this. Instead, Manning states that he monitored Morrison's vehicle when it was parked by the School and reported it because he was the School's head of security.
In response, Solt asserts that "[n]o other resident staff members had been monitored in a similar fashion" and that "there was no policy regarding `screening visitors.'" Reply Br. of Appellant at 8. But she fails to provide any evidence of her assertion, and "[i]t is not sufficient to show that the employee suffered embarrassment, humiliation, or mental anguish arising from nondiscriminatory harassment." Adams v. Able Bldg. Supply, Inc., 114 Wn. App. 291, 298, 57 P.3d 280 (2002). Solt offers only her own declarations in which she made similar assertions. The dispositive question is whether the female employee would have been subjected to the alleged harassment if she had been a male, and Solt offers no evidence that Manning would not have reported a vehicle parked by the School and an overnight male guest who did not check in with security. Adams, 114 Wn. App. at 298. Solt cannot rely solely on her own argumentative assertions or conclusory statements to create a genuine factual issue. Marquis, 130 Wn.2d at 105; Seven Gables, 106 Wn.2d at 13.
Solt also states that Selleck did not check with security when he spent nights at her school apartment before their marriage. But Selleck's situation was not analogous to Morrison's because Selleck was a known School employee when he stayed overnight at her apartment.
Second, Solt argues that Manning made inflammatory comments about her sexual orientation and financial status to Bauska. But Bauska denied ever hearing any such comments from Manning or telling Solt about them, and Solt makes no claim that any such comments occurred in her presence. Solt's sole assertions are insufficient to create a genuine factual issue about whether Manning's purported statements to a third party were based on her gender.
B. Severe and Pervasive Harassment
Any harassment must be "sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment . . . to be determined with regard to the totality of the circumstances." Glasgow, 103 Wn.2d at 406-07. Merely offensive conduct is insufficient. Washington v. Boeing Co., 105 Wn. App. 1, 10-11, 19 P.3d 1041 (2000). In addition to its frequency and severity, courts look at whether the conduct involved words alone or also included physical intimidation. Glasgow, 103 Wn.2d at 406-07; Adams, 114 Wn. App. at 296-97. "The conduct must be both objectively abusive (reasonable person test) and subjectively perceived as abusive by the victim." Adams, 114 Wn. App. at 297.
Solt fails to create a factual issue of whether Manning's behavior was severe and pervasive. "Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law." Glasgow, 103 Wn.2d at 406. Indeed, Solt does not allege that Manning had any direct contact with her, nor does she provide evidence of the frequency or extent of his actions or purported statements.
On this record, even if we were to assume that Manning had discriminatory intent, his monitoring of Morrison's vehicle and reporting it and his purported statements to Bauska create, at most, a trivial manifestation of a discriminatory environment. Thus, Manning's conduct is not objectively abusive and does not create an issue of disputed fact.
Solt, however, shows that Selleck's behavior was severe and pervasive. "[S]exually discriminatory verbal intimidation, ridicule, and insults may be sufficiently severe or pervasive to alter the conditions of employment." Kahn v. Salerno, 90 Wn. App. 110, 126, 951 P.2d 321 (1998). The record indicates that Selleck harassed Solt by leaving insulting telephone messages and ridiculing her in public. His conduct also involved physical intimidation. But to support a hostile work environment claim, Solt must also demonstrate that Selleck's conduct can be imputed to the School or Cummings.
C. Conduct Imputable to the Employer
The complaining employee must show that the employer "(a) authorized, knew, or should have known of the harassment and (b) failed to take reasonably prompt and adequate corrective action." Glasgow, 103 Wn.2d 407. The employee needs to prove that the employer's remedial action was not reasonably calculated to end the harassment. Glasgow, 103 Wn.2d at 407. Solt focused on this element during oral argument, claiming that the School and Cummings did not act in a timely and firm enough manner to halt Selleck's harassing conduct.
It is undisputed that Cummings and Bauska had actual knowledge of Selleck's conduct. Accordingly, Solt must raise a genuine issue of material fact about Cummings' remedial actions and whether they were reasonably calculated to end the harassment.
Here, Cummings terminated Selleck's employment within three days of learning about the harassment, despite Solt's statement that she did not want Selleck fired. Thus, Cummings, acting on behalf of the School, took prompt remedial action reasonably calculated to end the harassment.
It is undisputed that Cummings knew of Manning's report that Morrison and her vehicle were at or near the School without notification to the School's security personnel. But other than Solt's bare assertion that Bauska told her that Manning had made inappropriate comments, there is no evidence that either Cummings or Bauska knew or should have known of any of Manning's conduct that could be construed as harassing. Bauska denied hearing any such comments or relaying them to Solt. Nevertheless, Cummings gave Manning a written warning for "cross[ing] over the line" with regard to the conflict with Solt. CP at 234. Cummings then granted Solt's request for a pay raise and permission to move off campus. Nothing in the record indicates that the School failed to take reasonably prompt and adequate corrective actions.
The School argues that Solt's acceptance of this pay raise and opportunity to move off campus constituted accord and satisfaction. Relying solely on Jones v. Allstate Ins. Co., 146 Wn.2d 291, 313, 45 P.3d 1068 (2002), the School asserts that "[a]ccord and satisfaction occurs when a defendant proves that it tendered a benefit as full satisfaction of a disputed claim and the plaintiff accepted that benefit." Br. of Resp't (School) at 46. /* "[A]n accord and satisfaction consists of [(1)] a bona fide dispute, [(2)] an agreement to settle that dispute, and . . . [(3)] performance of the agreement." Perez v. Pappas, 98 Wn.2d 835, 843, 659 P.2d 475 (1983). An accord may be based on an express agreement or it may be implied from the circumstances. Evans v. Columbia Int'l Corp., 3 Wn. App. 955, 957, 478 P.2d 785 (1970). The party asserting accord and satisfaction bears the burden of showing a genuine meeting of the minds, i.e., a "genuine compromise, arrived at through mutual agreement, and not compromise fallen into inadvertently." Kibler v. Garrett Sons, Inc., 73 Wn.2d 523, 528-29, 439 P.2d 416 (1968). /* Here, the School does not provide evidence that Solt agreed to accept the benefits under a mutual understanding that it would constitute full satisfaction of her claims. Without evidence of whether there was a genuine meeting of the minds, the School's accord and satisfaction claim fails.
On these facts, Selleck's and Manning's conduct cannot be imputed to the School or Cummings for purposes of a hostile work environment claim. Solt, therefore, failed to meet her burden of raising a genuine issue of material fact, that is, to present a claim of pervasive conduct creating a hostile work environment based on gender.
Viewing all of the evidence in a light most favorable to Solt, the nonmoving party, a reasonable person could reach only one conclusion: the School and Cummings were not responsible for a hostile work environment based on Solt's gender. The School, Cummings, and Manning are entitled to judgment as a matter of law. The trial court properly granted summary judgment on this claim.
Solt contends that she suffered disparate treatment based on her gender. In order to establish a prima facie case for a claim of disparate treatment, an employee must show that (1) she is a member of a protected class, (2) she was treated less favorably than a similarly situated nonprotected employee, and (3) the nonprotected employee was doing the same work. Domingo v. Boeing Employees' Credit Union, 124 Wn. App. 71, 81, 98 P.3d 1222 (2004). Because Solt fails to argue or cite legal authority regarding this issue, her contention does not merit any further review. RAP 10.3(a)(5); Burnet v. Spokane Ambulance, 131 Wn.2d 484, 492 n. 2, 933 P.2d 1036 (1997).
III. Retaliation
Solt next contends that she was discharged from employment at the School as retaliation. Washington recognizes a cause of action for retaliation under chapter 49.60 RCW. The applicable section provides: "[I]t is unfair practice for any employer . . . to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter." RCW 49.60.210(1).
Solt also contends that Selleck and Manning retaliated by creating a hostile work environment. Because her hostile work environment claim fails, we do not address this issue separately except to note that "RCW 49.60.210 does not create personal and individual liability for co-workers." Malo v. Alaska Trawl Fisheries, Inc., 92 Wn. App. 927, 931, 965 P.2d 1124 (1998).
"To establish a prima facie case of retaliatory conduct, [an employee] must show that (1) she engaged in statutorily protected activity, (2) [her employer] took some adverse employment action against her, and (3) retaliation was a substantial factor behind the adverse employment action." Washington, 105 Wn. App. at 14. "[P]roximity in time between the discharge and the protected activity" as well as "satisfactory work performance and evaluations" are factors that suggest "retaliatory motivation." Vasquez v. Dep't of Soc. Health Servs., 94 Wn. App. 976, 985, 974 P.2d 348 (1999).
If the employee establishes a prima facie case, the burden shifts to the employer to show a legitimate, nondiscriminatory basis for its actions. Milligan v. Thompson, 110 Wn. App. 628, 636, 638, 42 P.3d 418 (2002). "An employee may prove the employer's reasons were pretextual `either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'" Estevez, 129 Wn. App. at 800 (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998)).
Solt asserts that "she was ultimately terminated because of [her] complaints." Br. of Appellant at 33. Without citing to the record, she argues that she had an "exemplary record." Br. of Appellant at 8. Assuming this is true, we cannot see how this alone can sufficiently establish a prima facie case of retaliatory discharge. Ghosh, the new Head of School, discharged Solt nearly two years after her complaints about Selleck and Manning. And, as Ghosh testified in her declaration, Solt's position was eliminated as part of a general downsizing for budgetary reasons. Moreover, Solt fails to offer any evidence showing that the School's explanation is a pretext.
Viewing the evidence in a light most favorable to Solt, we cannot say that Solt was discharged for retaliatory purposes or that the trial court erred in granting summary judgment on the retaliatory discharge claim.
IV. Negligent Supervision
Solt also contends that the School and Cummings negligently supervised Selleck and Manning. Relying solely on Thompson v. Everett Clinic, 71 Wn. App. 548, 860 P.2d 1054 (1993), which involved a claim by a third person against the employer, Solt asserts that a jury should decide whether the School responded adequately to her complaints.
An employer can be liable for negligently supervising an employee. Thompson, 71 Wn. App. at 555. "The theory of negligent supervision creates a limited duty to control an employee for the protection of third parties, even where the employee is acting outside the scope of employment." Niece v. Elmview Group Home, 131 Wn.2d 39, 51, 929 P.2d 420 (1997). "[A]n employer is not liable for negligent supervision of an employee unless the employer knew, or in the exercise of reasonable care should have known, that the employee presented a risk of danger to others." Niece, 131 Wn.2d at 48-49.
Cummings, on behalf of the School, promptly terminated Selleck's employment after learning of Selleck's behavior. Moreover, Solt fails to offer any evidence that the School or Cummings should have known earlier of a risk of harm Selleck presented, especially in light of her statement to Manning that she did not want to "jeopardize [Selleck's] position or [her] `relationship' with him." CP at 192.
The evidence also does not support Solt's negligent supervision claim with regard to Manning. There is no evidence that Manning presented any risk of harm. Moreover, the School gave him a written warning when he "crossed over the line" in his letter complaining to Cummings and Bauska about Solt. CP at 234. Viewed in a light most favorable to Solt, the evidence does not support her negligent supervision claim.
The trial court properly granted summary judgment on the negligent supervision claim as well.
The School claims that it is exempt from chapter 49.60 RCW because it is a religious institution. "`Employer' includes any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit." Former RCW 49.60.040(3) (1997). But the School does not assign error to the trial court's finding that the School is not a religious institution. Nor does it offer sufficient evidence to prove that it is a religious institution. See Hazen v. Catholic Credit Union, 37 Wn. App. 502, 505-06, 681 P.2d 856 (1984) (noting that promoting thrift and providing a source of credit are not religious activities). Thus, the School's claim does not merit further review.
V. Attorney Fees
Finally, Solt requests attorney fees and costs under former RCW 49.60.030(2) (1997) and RCW 49.48.030. Br. of App. 37. Any person injured by discrimination in employment may bring an action for injunctive relief and damages "together with the cost of suit including reasonable attorneys' fees." Former RCW 49.60.030(2) (1997). "In any action in which any person is successful in recovering judgment for wages or salary owed to him, reasonable attorney's fees . . . shall be assessed against said employer or former employer." RCW 49.48.030. Because we affirm the trial court's order of summary judgment in favor of the defendants, Solt is not entitled to attorney fees and costs.
We affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
Houghton, C. J. and Penoyar, J., Concur.