Spokoiny v. University of Washington Medical Center

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 10 ELIZABETH SPOKOINY, CASE NO. C22-0536JLR 11 Plaintiff, ORDER v. 12 UNIVERSITY OF WASHINGTON 13 MEDICAL CENTER, 14 Defendant. 15 I. INTRODUCTION 16 Before the court is Defendant University of Washington Medical Center’s 17 (“UWMC”) motion for summary judgment. (Mot. (Dkt. # 12); Reply (Dkt. # 25).) 18 Plaintiff Elizabeth Spokoiny opposes the motion. (Resp. (Dkt. # 23).) The court has 19 // 20 // 21 // 22 1 considered the parties’ submissions, the relevant portions of the record, and the governing 2 law. Being fully advised,1 the court GRANTS UWMC’s motion. 3 II. BACKGROUND 4 This case arises out of Ms. Spokoiny’s employment as a registered nurse at 5 UWMC from August 2015 through December 2020. (Am. Compl. (Dkt. # 2-7) ¶ 2.) It 6 was Ms. Spokoiny’s first full-time nursing job, and she was simultaneously pursuing a 7 doctorate of nursing practice (“DNP”) degree. (See Freeman Decl. (Dkt. # 13) ¶ 3(C), 8 Ex. 3 (“Spokoiny Dep.”) at 37:12-24.) Ms. Spokoiny describes herself as a hard worker 9 and proudly proclaims that she earned “distinguished performance reviews” after her first 10 four years at UWMC. (Am. Compl. ¶ 37.) As Ms. Spokoiny was approaching the final 11 semester of her DNP program, however, her supervisors at UWMC noticed that she had 12 been doing schoolwork during scheduled shifts, arrived late to work several times, and 13 was not meeting performance expectations, including by failing to stay in designated 14 clinic areas and ensure that patients were prepared for their procedures. (Bagdasarian 15 Decl. (Dkt. # 18) ¶ 5, Ex. 2 (“Formal Action Plan”) at DEF_000410.) In early December 16 2019, an assistant clinic director met with a UWMC human resources consultant, Ms. 17 Spokoiny’s union representative, and Ms. Spokoiny to discuss these issues. (Bagdasarian 18 Decl. ¶ 5.) The assistant clinic director drafted a “potential Action Plan outlining 19 expectations for performance in [Ms. Spokoiny’s] role,” but ultimately “the Action Plan 20 // 21 1 Neither party requests oral argument (see Mot. at 1; Resp. at 1), and the court concludes that oral argument would not be helpful to its disposition of UWMC’s motion, see 22 Local Rules W.D. Wash. LCR 7(b)(4). 1 was never implemented” and management “never moved forward with any corrective 2 action.” (Id. See generally Formal Action Plan.) The following month, in January 2020, 3 Ms. Spokoiny received her lowest performance rating at UWMC: “2 – Successful.” 4 (Bagdasarian Decl. ¶ 9, Ex. 5 (“Performance Review”) at DEF_001976; see also Resp. at 5 10; Am. Compl. ¶¶ 37-38.)2 Ms. Spokoiny claims to have never received less than a 6 “distinguished” 2.75 until then. (Resp. at 10.) 7 Ms. Spokoiny continued working at UWMC for almost another year. (See Gould 8 Decl. (Dkt. # 15) ¶ 16.) During that time, she earned her DNP degree, sat for her board 9 exam, and applied for positions at other clinics before ultimately resigning from UWMC 10 without notice in December of 2020. (See id.; Spokoiny Dep. at 37:21-25, 38:21-39:5, 11 186:18-25.) Since leaving UWMC, Ms. Spokoiny has worked for several private clinics 12 and just recently returned to the University of Washington School of Medicine as a nurse 13 practitioner. (Spokoiny Dep. at 186:18-25.) 14 To this day, however, Ms. Spokoiny maintains that her January 2020 performance 15 review was “tainted” and that her former supervisors at UWMC gave her a low score in 16 retaliation for a myriad of incidents that occurred in the year prior. (Resp. at 15.) Ms. 17 Spokoiny alleges that her supervisors “manipulated” her review and that the meeting 18 preceding it was an “arbitrary and capricious” “sham” designed to “force [her] to resign 19 and forego her . . . employment rights.” (Am. Compl. ¶¶ 34, 37.) According to Ms. 20 // 21 2 Ms. Spokoiny’s “Calculated Rating” was a 1.5, indicating that she “need[ed] improvement” in certain areas, but it appears her manager gave her an overall rating of 2 out of 22 3. (See Performance Review at DEF_001976.) 1 Spokoiny, her review contained “zero truthful comments related to clinical competency at 2 which [she] excels” and was “direct retaliation” for: (1) “requesting disability 3 accommodation”;3 (2) “suffering a workplace injury”; (3) “complaining about sexual 4 harassment”; (4) “acting as a whistleblower”; (5) “demanding unpaid wages”; and 5 (6) “exercising her Weingarten rights.”4 (Id. ¶¶ 37, 67-73.) 6 Ms. Spokoiny filed her initial complaint on December 29, 2021 (Compl. (Dkt. 7 # 1-1)) and amended her complaint on March 25, 2022 (Am. Compl.). She lists ten 8 causes of action in her amended complaint, including claims for disparate treatment 9 under Title VII of the Civil Rights Act of 1964 (“Title VII”), Title IX of the Education 10 Amendments of 1972 (“Title IX”), the Washington Law Against Discrimination 11 (“WLAD”), and the Americans with Disabilities Act (“ADA”); retaliation under Title 12 VII, Title IX, WLAD, and the ADA; failure to accommodate under WLAD and the 13 ADA; unpaid wages; and violation of Washington’s Public Records Act (“PRA”), RCW 14 42.56.5 (Am. Compl. at 14 (“Causes of Action” list).) In addition, Ms. Spokoiny 15 16 3 Ms. Spokoiny has a vision disability and used a sit/stand desk at UWMC for medical reasons. (Am. Compl. ¶¶ 4, 45.) She also received Family and Medical Leave Act (“FMLA”) 17 leave while working at UWMC. (See id. ¶¶ 55-56.) 18 4 See NLRB v. J. Weingarten, Inc., 420 U.S. 251, 267 (1975) (holding employees have the right to union representation at investigatory interviews that may result in disciplinary 19 action). 20 5 Ms. Spokoiny included her PRA claim only in her amended complaint. (See generally Compl. See Am. Compl. ¶¶ 74-83.) UWMC argues that Ms. Spokoiny never served her amended complaint (Mot. at 24), but Ms. Spokoiny responds that she served it nearly a month 21 before UWMC removed the case to this court (Resp. at 2 (citing L. Spokoiny Decl. (Dkt. # 22) ¶ 2, Ex. 1 (email correspondence between Ms. Spokoiny’s counsel and the Washington Attorney 22 General’s Office regarding electronic service of the amended complaint)).). UWMC does not 1 includes in her amended complaint sections titled “Sexual Harassment,” “Worker’s 2 Compensation,” “Family Medical Leave Act,” and “Whistleblower Protection” (see id. 3 ¶¶ 48-56, 62-66), but does not list corresponding claims among her causes of action (see 4 id. at 14). 5 The court first sets forth the legal standard for evaluating summary judgment 6 motions before addressing each of Ms. Spokoiny’s claims. 7 III. LEGAL STANDARD 8 Summary judgment is appropriate if the evidence viewed in the light most 9 favorable to the non-moving party shows “that there is no genuine dispute as to any 10 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 11 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is “material” if it 12 might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 13 (1986). A factual dispute is “‘genuine’ only if there is sufficient evidence for a 14 reasonable fact finder to find for the non-moving party.” Far Out Prods., Inc. v. Oskar, 15 247 F.3d 986, 992 (9th Cir. 2001) (citing Anderson, 477 U.S. at 248-49). 16 The moving party bears the initial burden of showing there is no genuine dispute 17 of material fact and that it is entitled to prevail as a matter of law. Celotex, 477 U.S. at 18 323. If the moving party does not bear the ultimate burden of persuasion at trial, it can 19 show the absence of such a dispute in two ways: (1) by producing evidence negating an 20 essential element of the nonmoving party’s case, or (2) by showing that the nonmoving 21 address this argument in its reply brief. (See generally Reply.) Accordingly, the court will 22 consider the merits of Ms. Spokoiny’s PRA claim. 1 party lacks evidence of an essential element of its claim or defense. Nissan Fire & 2 Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving party 3 meets its burden of production, the burden then shifts to the nonmoving party to identify 4 specific facts from which a factfinder could reasonably find in the nonmoving party’s 5 favor. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250. 6 IV. ANALYSIS 7 The court considers Ms. Spokoiny’s claims in the order presented in UWMC’s 8 motion. 9 A. Sexual Harassment 10 Ms. Spokoiny’s amended complaint is not a model of clarity. She does not 11 include sexual harassment in her list of causes of action (see Am. Compl. at 14), and the 12 “Sexual Harassment” section of her complaint fails to identify any statutory basis for a 13 sexual harassment claim (see id. ¶¶ 48-52). UWMC argues that Ms. Spokoiny appears to 14 plead that UWMC retaliated against her for reporting sexual harassment, not that UWMC 15 is liable for sexual harassment. (See id. ¶ 52; Mot. at 7.) Nevertheless, Ms. Spokoiny 16 argues that she has presented a prima facie case “under state and federal law of sexual 17 harassment” (Resp. at 1), and UWMC addresses this claim on the merits (see Mot. at 18 7-9). The court therefore construes Ms. Spokoiny’s amended complaint as alleging a 19 sexual harassment claim. 20 To prevail on a sexual harassment claim under Title VII, the plaintiff must show 21 that (1) she “was subjected to a hostile work environment,” and (2) her employer “was 22 liable for the harassment that caused the hostile environment to exist.” Fried v. Wynn 1 Las Vegas, LLC, 18 F.4th 643, 647 (9th Cir. 2021). The first element requires the 2 plaintiff to prove that (1) she “was subjected to verbal or physical conduct of a sexual 3 nature,” (2) “the conduct was unwelcome,” and (3) “the conduct was sufficiently severe 4 or pervasive to alter the conditions of employment and create an abusive working 5 environment.” Id. The second element is satisfied if the employer failed “to take 6 immediate and corrective action in response to a coworker’s or third party’s sexual 7 harassment” that it “knew or should have known about.” Id. (collecting cases). 8 Similarly, under the WLAD, the plaintiff must show that “(1) the harassment was 9 unwelcome; (2) the harassment was because of sex; (3) the harassment affected the terms 10 or conditions of employment; and (4) the harassment is imputed to the employer.” 11 Estevez v. Fac. Club of the Univ. of Wash., 120 P.3d 579, 588 (Wash. Ct. App. 2005) 12 (internal quotation marks omitted) (quoting Coville v. Cobarc Servs., Inc., 869 P.2d 1103, 13 1105 (Wash. Ct. App. 1994)). Harassment is “imputed to the employer” if it “authorized, 14 knew, or should have known of the harassment and . . . failed to take reasonably prompt 15 and adequate corrective action.” Glasgow v. Georgia-Pacific Corp., 693 P.2d 708, 712 16 (Wash. 1985). 17 Although Ms. Spokoiny has produced evidence that UWMC employee Cooper 18 Wilhelm subjected her to unwelcome conduct of a sexual nature (see, e.g., 1st Spokoiny 19 Decl. (Dkt. # 21) ¶¶ 16, 38 (describing that conduct)), she has not met her burden to show 20 that UWMC failed to take reasonably prompt and adequate corrective action after 21 learning about the conduct. See Fried, 18 F.4th at 647. To the contrary, the undisputed 22 evidence in the record shows that Ms. Spokoiny first reported Mr. Wilhelm’s unwelcome 1 sex-based conduct to UWMC management in late August or early September 2019, when 2 she informed her manager that Mr. Wilhelm put “his hand on [her] back and said: ‘I can 3 see through your clothes. Don’t you care?’” (1st Spokoiny Decl. ¶¶ 38-39; see also 4 (Petritz Decl. (Dkt. # 16) ¶ 14 (confirming that Ms. Spokoiny had not reported an earlier 5 comment by Mr. Wilhelm). See generally Resp. (directing the court to no evidence that 6 Ms. Spokoiny reported the earlier comment or any other alleged sex-based conduct by 7 Mr. Wilhelm).) Ms. Spokoiny’s manager immediately reported the comment to Mr. 8 Wilhelm’s manager, who then “immediately addressed” it with Mr. Wilhelm. (Petritz 9 Decl. ¶ 14.) Mr. Wilhelm resigned that same day and never worked with Ms. Spokoiny 10 again. (See id.; Spokoiny Dep. at 168:17-169:15; 1st Spokoiny Decl. ¶ 41.) Although 11 Ms. Spokoiny also refers to a July 2019 “mediation meeting” that her managers allegedly 12 “forced” her to attend with Mr. Wilhelm, she does not cite any evidence that she reported 13 any sex-based conduct by Mr. Wilhelm (as opposed to bullying) before that meeting, and 14 an email she sent shortly after the meeting includes no references to sexual harassment or 15 sexual conduct. (Resp. at 4; see Waldhausen Decl. (Dkt. # 20) ¶ 6, Ex. 2, at 6-7 16 (discussing concerns about bullying and group dynamics).) Finally, Ms. Spokoiny asserts 17 that she “was forced” to watch Mr. Wilhelm’s wrestling videos, which had “sexual 18 overtones” (Res. at 2), but does not point the court to any evidence that UWMC was or 19 should have been aware of this conduct (see generally id.). 20 Thus, because Ms. Spokoiny has not met her burden to present evidence that 21 would allow a reasonable factfinder to conclude that UWMC failed to take immediate 22 corrective action after learning of unwelcome sex-based conduct, the court grants 1 UWMC’s motion for summary judgment on Ms. Spokoiny’s hostile work environment 2 sexual harassment claims. 3 B. Disparate Treatment 4 Although her pleadings are again unclear, Ms. Spokoiny appears to allege that 5 UWMC discriminated against her on the basis of disability6 in violation of Title VII, Title 6 IX, WLAD, and the ADA by giving her a low performance review in January 2020 and 7 by denying her requests for accommodations and FMLA leave. (See, e.g., Am. Compl. 8 ¶¶ 47, 54, 56; id. at 14; Resp. at 6 (citing Spokoiny Dep. at 155:9-156:4).) She asserts 9 that the court must deny UWMC’s motion for summary judgment on her disparate 10 treatment claims because she has presented a prima facie case of disability 11 discrimination. (Resp. at 1.) The court disagrees. 12 Disparate treatment claims under federal and state law are governed by the 13 McDonnell Douglas burden-shifting framework. See Curley v. City of N. Las Vegas, 772 14 F.3d 629, 632 (9th Cir. 2014) (ADA); Hines v. Todd Pac. Shipyards, 112 P.3d 522, 529 15 (Wash. Ct. App. 2005) (WLAD); see also McDonnell Douglas Corp. v. Green, 411 U.S. 16 792, 802 (1973).7 The WLAD largely mirrors federal law, and courts “look to 17 6 Ms. Spokoiny does not respond to UWMC’s argument that she has only identified 18 disability as a basis for her disparate treatment claim. (See Mot. at 10 (citing Am. Compl.)); Resp. at 1 (referring only to discrimination on the basis of disability).) In addition, the 19 complaint’s sole mention of discrimination on any ground other than disability appears within its discussion of alleged sexual harassment. (See Am. Compl. ¶ 52 (alleging UWMC discriminated 20 “on the basis of sex” by “allowing [Mr.] Wilhelm’s harassment to continue unabated”).) The court therefore concludes that Ms. Spokoiny’s disparate treatment claims are based only on disability. 21 7 Claims for disability discrimination in employment are not actionable under Title VII 22 (see 42 U.S.C. § 2000e-2(a)(1)) and Ms. Spokoiny refers to Title IX in her response only in the 1 interpretations of federal anti-discrimination laws . . . when applying the WLAD.” See 2 Grill v. Costco Wholesale Corp., 312 F. Supp. 2d 1349, 1354 (W.D. Wash. 2004). Under 3 the burden-shifting framework, the plaintiff must first establish a prima facie case of 4 discrimination. Curley, 772 F.3d at 632. The plaintiff may establish a prima facie case 5 either by offering direct evidence of discrimination or by showing that (1) she is disabled; 6 (2) she is doing satisfactory work; (3) she suffered an adverse employment action; and (4) 7 similarly situated non-disabled individuals were treated more favorably or that other 8 circumstances raise a reasonable inference of unlawful discrimination. McElwain v. 9 Boeing Co., 244 F. Supp. 3d 1093, 1097-98 (W.D. Wash. 2017) (citing Callahan v. Walla 10 Walla Hous. Auth., 110 P.3d 782, 786 (Wash. Ct. App. 2005)). If the plaintiff succeeds 11 in making out a prima facie case, then the burden shifts to the defendant to offer a 12 legitimate nondiscriminatory explanation for its actions. Curley, 772 F.3d at 632. If the 13 defendant does so, the burden shifts back to the plaintiff to show that the defendant’s 14 explanation is pretext for discrimination. Id. 15 Ms. Spokoiny has not identified any direct evidence of UWMC’s intent to 16 discriminate against her on the basis of disability. (See generally Resp.) She points to a 17 December 15, 2019 email in which she asserts that her supervisor “admitted in writing 18 that the main reason she gave Ms. Spokoiny a very low performance review was due to 19 ‘health issues.’” (Id. at 11 (citing 2nd Spokoiny Decl. (Dkt. # 24) ¶ 20, Ex. 4 (“Sarabia 20 // 21 context of gender discrimination (see Resp. at 7). Therefore, the court grants UWMC’s motion for summary judgment to the extent Ms. Spokoiny alleges disability discrimination claims under 22 Title VII and Title IX. 1 Email” at 1).) Ms. Spokoiny’s characterization of this email, however, is untenable. Ms. 2 Spokoiny’s supervisor actually wrote that it was Ms. Spokoiny, rather than the supervisor, 3 who “attribute[d] her behaviors or missteps in work performance to her stressors,” which 4 included “health issues, work related stressors, familial, school-related stressors, and 5 personal issues.” (Sarabia Email at 1.) No reasonable factfinder could conclude that this 6 email is direct evidence of UWMC’s discriminatory intent. 7 Because Ms. Spokoiny has not identified direct evidence of discrimination on the 8 basis of disability, the court applies the McDonnell Douglas framework in evaluating her 9 claims. See McElwain, 244 F. Supp. 3d at 1097-98. As discussed below, the court 10 concludes that summary judgment in UWMC’s favor is warranted because, even 11 assuming Ms. Spokoiny belongs to a protected class within the meaning of WLAD and 12 federal law, and even assuming she was performing in accordance with UWMC’s 13 expectations, she does not raise a genuine issue as to the third and fourth elements of the 14 prima facie case. Specifically, Ms. Spokoiny has failed to direct the court toward 15 “specific facts” that would support a finding that UWMC took an adverse employment 16 action against her or that the circumstances surrounding that action raise a reasonable 17 inference of unlawful discrimination. Celotex, 477 U.S. at 324; see McElwain, 244 F. 18 Supp. 3d at 1097-98. 19 Regarding the third element of the prima facie case, the court agrees with UWMC 20 that Ms. Spokoiny has not raised a genuine issue as to whether UWMC subjected her to a 21 cognizable adverse employment action, defined as one that “materially affects the 22 compensation, terms, conditions, or privileges of employment.” Campbell v. Haw. Dep’t 1 of Educ., 892 F.3d 1005, 1012 (9th Cir. 2018) (quoting Davis v. Team Elec. Co., 520 F.3d 2 1080, 1089 (9th Cir. 2008)). First, Ms. Spokoiny asserts that the January 2020 3 performance evaluation was an adverse employment action. (Resp. at 9.) However, “a 4 negative performance review, without more, does not constitute an adverse employment 5 action” in the context of a disparate treatment claim. Bryant v. Covina-Valley Unified 6 Sch. Dist., No. CV 17-1274 PSG (AJWx), 2017 WL 10543559, at *5 (C.D. Cal. Oct. 16, 7 2017) (collecting cases). 8 Second, Ms. Spokoiny asserts that she suffered an adverse action because “her 9 FMLA was interfered with and accommodations delayed or denied.” (Resp. at 9-10.) 10 She does not, however, cite any specific examples of UWMC denying a request for 11 FMLA or accommodation, nor does she rebut UWMC’s evidence that it never denied 12 such requests. (See generally id. See also Garman Decl. (Dkt. # 14) ¶ 15 (“I am not 13 aware of any circumstances in which [Ms. Spokoiny] was denied FMLA leave or 14 accommodation.”).) To the contrary, Ms. Spokoiny acknowledges that UWMC provided 15 several requested accommodations, including an alternative keyboard, document camera, 16 sit-stand desk, magnifier, and intermittent leave. (Spokoiny Dep. at 82:17-20.) 17 Third, Ms. Spokoiny points to two purported adverse employment actions in her 18 response brief that she did not raise in her complaint. She first argues that management 19 tried to “force” her to quit by encouraging her to resign to avoid being placed on an 20 action plan. (Resp. at 11 (citing 2d Spokoiny Decl. ¶ 21, Ex. 5 (“Davey Emails”) at 1).) 21 Ms. Spokoiny relies, however, on an email thread that was initiated in response to her 22 own query about the resignation process. (See Davey Emails at 3.) Ms. Spokoiny next 1 asserts that a supervisor “attempted to reassign [her] from a nursing job to a 2 housekeeping role.” (Resp. at 11.) But nothing in the record suggests that Ms. Spokoiny 3 was ever actually demoted or reassigned to housekeeping. (See generally id. (citing no 4 evidence supporting a finding that Ms. Spokoiny was reassigned).) The court therefore 5 concludes that Ms. Spokoiny has failed to meet her burden to establish the third element 6 of a prima facie disparate treatment claim. 7 Ms. Spokoiny also fails to satisfy the fourth element of the prima facie case 8 because she has neither provided evidence that similarly situated employees were treated 9 more favorably than she was nor shown that other circumstances give rise to an inference 10 of discrimination. (See generally id.) Ms. Spokoiny identifies no evidence that UWMC 11 treated any non-disabled individual who had a similar job and engaged in similar conduct 12 more favorably. See Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) 13 Although she contends that “no other nurse received an annual performance review score 14 lower than 2.25” (Resp. at 10 (citing L. Spokoiny Decl. ¶ 5, Ex. 4 (“Evaluations”))), she 15 fails to identify any nondisabled nurses who received higher scores despite engaging in 16 conduct similar to that which led to her lower score. See Vasquez, 349 F.3d at 641. Ms. 17 Spokoiny has not identified any other evidence from which a reasonable factfinder could 18 infer that UWMC subjected her to discrimination on the basis of her disability. (See 19 generally Resp.) 20 In sum, Ms. Spokoiny has failed to establish a prima facie case of disparate 21 treatment on the basis of disability. Ms. Spokoiny does not offer any direct evidence of 22 UWMC’s alleged discriminatory intent, and she fails to provide evidence sufficient to 1 meet her initial burden under the McDonnell Douglas framework to establish a prima 2 facie case of disability discrimination. UWMC is therefore entitled to summary 3 judgment on these claims. 4 C. Retaliation 5 Ms. Spokoiny alleges that UWMC “singled [her] out for punishment in direct 6 retaliation” for the following: (1) “requesting disability accommodation”; (2) “suffering 7 a workplace injury”; (3) “complaining about sexual harassment”; (4) “acting as a 8 whistleblower”; (5) “demanding unpaid wages”; and (6) “exercising her Weingarten 9 rights.” (Am. Compl. ¶¶ 67-73.) In response to UWMC’s motion for summary judgment 10 on her retaliation claims, however, Ms. Spokoiny appears to identify only two actions for 11 which UWMC allegedly retaliated against her: “filing the sexual harassment complaint 12 against Mr. Wilhelm” and “taking advantage of FMLA to deal with her disabilities.” 13 (See Resp. at 6.) Ms. Spokoiny asserts that UWMC retaliated against her by (1) issuing 14 the January 2020 performance review, (2) “orchestrating [a] secret meeting, which 15 occurred the same day Mr. Wilhelm resigned,” (3) interfering with her FMLA requests, 16 and (4) delaying or denying her requests for accommodations. (Id. at 5, 10.) The court 17 concludes that Ms. Spokoiny fails to raise a triable issue as to her retaliation claims. 18 Like disparate treatment claims under WLAD, “a plaintiff may defeat summary 19 judgment in a retaliation claim with direct evidence or through the McDonnell Douglas 20 burden shifting scheme.” Houserman v. Comtech Telecomms. Corp., No. C19-0644RAJ, 21 2020 WL 7773417, at *8 (W.D. Wash. Dec. 30, 2020). Under both state and federal law, 22 a prima facie case of retaliation requires proof that the plaintiff (1) “engaged in a 1 protected activity,” (2) “suffered an adverse action,” and (3) can establish “a causal 2 connection between the protected activity and the adverse action.” Brzycki v. 3 Harborview Med. Ctr., No. C18-1582MJP, 2020 WL 1237154, at *7 (W.D. Wash. Mar. 4 13, 2020) (citing Vasquez, 349 F.3d at 646). In the retaliation context, an adverse action 5 “consists of conduct which would dissuade a reasonable worker from engaging in 6 protected activity.” Id. (citing BNSF Ry. Co. v. White, 548 U.S. 53, 68 (2006)). 7 Again, Ms. Spokoiny has come forward with no direct evidence in support of her 8 claims. (See generally Resp.) Accordingly, she must satisfy her burden under the 9 McDonnell Douglas framework. The court concludes that summary judgment is 10 appropriate because, even assuming that Ms. Spokoiny has shown a genuine issue of 11 material fact regarding whether she engaged in protected activity and whether UWMC 12 subjected her to an adverse employment action, she has failed to demonstrate any causal 13 relationship between her protected activity and UWMC’s actions. 14 The court assumes, without deciding, that Ms. Spokoiny’s complaint about Mr. 15 Wilhelm’s alleged sexual harassment and requests for FMLA to accommodate her 16 disability constituted protected activity. (See generally Resp.; Reply. See 1st Spokoiny 17 Decl. ¶ 41.) The court also assumes, without deciding, that the January 2020 18 performance review was an adverse employment action.8 See Hooks v. Works, 14 F. 19 App’x 769, 772 (9th Cir. 2001) (“A negative performance evaluation may constitute an 20 8 Ms. Spokoiny fails to explain how or why the “secret meeting” was an adverse 21 employment action (see generally Resp.), and, as discussed above, Ms. Spokoiny does not cite any specific examples of UWMC denying a request for FMLA or accommodation and fails to 22 rebut UWMC’s evidence that it did not, see supra § IV(B). 1 adverse employment action.” (citing Kortan v. Cal. Youth. Auth., 217 F.3d 1104, 1112 2 (9th Cir. 2000)). 3 Ms. Spokoiny falls short, however, of satisfying the causation element of her 4 prima facie case. Indeed, she does not address causation in her brief. (See generally 5 Resp. (no discussion of causal connection).) In any event, the causation element requires 6 Ms. Spokoiny to present “evidence sufficient to raise the inference that protected activity 7 was the likely reason” for the adverse actions. Davis v. Team Elec. Co., 520 F.3d 1080, 8 1984 (9th Cir. 2008). This she has failed to do. Simply put, Ms. Spokoiny has directed 9 the court to no evidence from which a reasonable juror could find a causal connection 10 between her protected activities and her performance review. (See generally Resp.) See, 11 e.g., Martinez-Patterson v. AT&T Servs. Inc., No. C18-1180RSM, 2021 WL 3617179, at 12 *10 (W.D. Wash. Aug. 16, 2021) (“Plaintiff’s mere belief that her ratings . . . were 13 motivated by retaliatory animus do not establish a causal connection between the 14 protected activities and her ratings . . . .”). Because Ms. Spokoiny has not met her 15 burden to demonstrate a causal connection between the protected activities she undertook 16 and the adverse employment action she allegedly suffered, the court need not consider the 17 remaining steps of the McDonnell Douglas framework. UWMC is entitled to summary 18 judgment on Ms. Spokoiny’s retaliation claims. 19 D. Whistleblowing 20 In the “Whistleblower Protection” section of her amended complaint, Ms. 21 Spokoiny alleges that UWMC retaliated against her after she reported a coworker for a 22 possible ethics violation in accepting “approximately 20 lbs of deer and elk meat” from a 1 Montana patient. (Am. Compl. ¶ 63.) UWMC argues this claim should be dismissed 2 because the undisputed facts show that Ms. Spokoiny did not report the alleged violation 3 until a year after it occurred and months after UWMC issued the January 2020 4 performance evaluation. (Mot. at 18-19.) Ms. Spokoiny neither responds to this 5 argument nor directs the court toward any evidence or legal authority supporting a claim 6 for whistleblower protection. (See generally Resp.) UWMC is therefore entitled to 7 summary judgment on this claim. 8 E. Failure to Accommodate 9 Ms. Spokoiny alleges that UWMC violated the WLAD and ADA by delaying or 10 denying her requests for accommodations. (Am. Compl. ¶¶ 45-47; see id. at 14.) 11 The “basic requirements” of a failure to accommodate claim under WLAD and the 12 ADA “are essentially the same.” McElwain, 244 F. Supp. 3d at 1098 (quoting 13 McDaniels v. Grp. Health Co-op, 57 F. Supp. 3d 1300, 1314 (W.D. Wash. 2014)). Both 14 statutes require the plaintiff to show that (1) she is disabled, (2) she is qualified for the 15 job in question and capable of performing it with reasonable accommodation; (3) the 16 employer had notice of her disability; and (4) the employer failed to reasonably 17 accommodate the disability. Id. at 1098-99. “Reasonable accommodation . . . envisions 18 an exchange between employer and employee where each seeks and shares information 19 to achieve the best match between the employee’s capabilities and available positions.” 20 Goodman v. Boeing Co., 899 P.2d 1265, 1269-70 (Wash. 1995). But “[t]he employee, of 21 course, retains a duty to cooperate with the employer’s efforts by explaining her disability 22 and qualifications.” Id. at 1269. 1 Ms. Spokoiny alleges that although she was “entitled to a special [sit/stand] desk,” 2 “her managers routinely forced her to work in an area without providing such 3 accommodations.” (Am. Compl. ¶ 45.) She further asserts that she “was informed an 4 update to her accommodations would be made” but “the meeting was cancelled and she 5 was denied the opportunity to update her current needs.” (Id. ¶ 46.) 6 UWMC does not dispute Ms. Spokoiny’s disability status or qualifications but 7 argues that it provided her with the accommodations she requested. (See Mot. at 20 8 (describing a “desk, document camera/magnifier, keyboard, s[]it/stand desk, medical 9 device for migraines, [and] intermittent leave” (citing Spokoiny Dep. at 82:14-20)).) Ms. 10 Spokoiny does not respond to the substance of UWMC’s argument. (See generally 11 Resp.) Although she contends, in the first sentence of her opposition brief, that she 12 presents a prima facie case for “failure to accommodate under ADA” (id. at 1), she never 13 expressly addresses her failure to accommodate claim (see generally id.). Ms. Spokoiny 14 makes conclusory statements, in the context of her discussion of her discrimination and 15 retaliation claims, that her accommodations were “delayed or denied” and quotes notes 16 from her own interview in support of that contention. (See id. at 10.) Ms. Spokoiny does 17 not, however, point the court toward evidence from which a reasonable factfinder could 18 conclude that she ever made a request for accommodations that UWMC denied. (See 19 generally id. See Garman Decl. ¶ 15 (“I am not aware of any circumstances in which 20 [Ms. Spokoiny] was denied . . . accommodation.”)); see also Wells v. Mut. of Enumclaw, 21 244 F. App’x 790, 792 (9th Cir. 2007) (affirming grant of summary judgment after the 22 plaintiff failed to “request[] an accommodation”). Because Ms. Spokoiny has failed to 1 provide evidence that UWMC failed to reasonably accommodate her disability, UWMC 2 is entitled to summary judgment on these claims. 3 F. Workers’ Compensation Retaliation and Discrimination 4 Ms. Spokoiny asserts that UWMC retaliated and discriminated against her for 5 having a workers’ compensation claim related to an on-the-job injury “by routinely and 6 systematically denying her requests for time off despite [her FMLA] certification.” (Am. 7 Compl. ¶¶ 53-54.) UWMC argues that that Ms. Spokoiny “should not be permitted to 8 proceed on a worker’s compensation retaliation/discrimination claim” because “[n]o 9 evidence suggests any animus toward [Ms.] Spokoiny for filing a workers’ compensation 10 claim with the State.” (Mot. at 21-22 (capitalization altered).) Ms. Spokoiny does not 11 respond to this argument and fails to direct the court toward any evidence in support of 12 any claim concerning workers’ compensation. (See generally Resp. (no mention of 13 workers’ compensation).) UWMC is therefore entitled to summary judgment on these 14 claims. 15 G. FMLA Interference 16 Ms. Spokoiny alleges that “UWMC . . . interfered with her FMLA claim by 17 routinely and systematically denying her requests for time off.” (Am. Compl. ¶¶ 55-56.) 18 Like her hostile work environment sexual harassment claims, Ms. Spokoiny does not 19 include claims for FMLA interference in her causes of action. (See id. at 14.) Again, 20 however, UWMC argues these claims on the merits (see Mot. at 22-23), and Ms. 21 Spokoiny asserts that she has presented a prima facie case of “FMLA interference” 22 // 1 (Resp. at 1). The court therefore construes Ms. Spokoiny’s amended complaint as 2 alleging a claim for FMLA interference.9 3 “The FMLA grants employees twelve weeks of unpaid leave for certain medical 4 reasons and requires employers to reinstate employees to the same or similar positions 5 after they return from ‘such leave.’” Fiatoa v. Keala, 191 F. App’x 551, 553 (9th Cir. 6 2006) (quoting 29 U.S.C. §§ 2612(a)(1), 2614(a)(1)). Section 2615 of the FMLA makes 7 it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the 8 attempt to exercise” these rights. 29 U.S.C. § 2615(a)(1). 9 To establish a prima facie case of FMLA interference, the plaintiff must establish 10 that (1) she “was eligible for the FMLA’s protections,” (2) her “employer was covered by 11 the FMLA,” (3) she “was entitled to leave under the FMLA,” (4) she “provided sufficient 12 notice of [her] intent to take leave,” and (5) the “employer denied [her] FMLA benefits to 13 which [s]he was entitled.” Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1243 14 (9th Cir. 2004) (quoting Sanders v. City of Newport, 657 F.3d 772, 778 (9th Cir. 2011)). 15 As discussed above, Ms. Spokoiny fails to direct the court toward any specific 16 instances of UWMC denying a request for FMLA leave. Supra § IV(B). (See generally 17 Resp.) Ms. Spokoiny also fails to rebut UWMC’s evidence that it never denied requests 18 9 UWMC argues that it is entitled to summary judgment on any claims brought under 19 Washington’s Paid Family Leave Act (“PFMLA”) (Mot. at 22-23 (citing RCW 50A.40.010)), but Ms. Spokoiny did not assert a claim for PFMLA interference (see Am. Compl. at 14), nor did 20 she even mention the PMFLA in her complaint or opposition brief (see generally Am. Compl.; Resp.). Although the PFMLA “mirrors its federal counterpart,” Mooney v. Roller Bearing Co. of Am., Inc., No. C20-1030LK, 2022 WL 1014904, at *21 (W.D. Wash. Apr. 5, 2022) (quoting 21 Crawford v. JP Morgan Chase NA, 983 F. Supp. 2d 1264, 1269 (W.D. Wash. 2013)), the court only addresses whether UWMC is entitled to summary judgment on Ms. Spokoiny’s federal 22 FMLA claims. 1 for FMLA leave. (See generally Resp. See Garman Decl. ¶ 15.) Accordingly, even 2 assuming Ms. Spokoiny has established the first four elements of her prima facie case for 3 FMLA interference, she does not raise a genuine issue as to the fifth element because she 4 has failed to direct the court toward “specific facts” that would support a finding that 5 UWMC denied her any benefits to which she was entitled under the FMLA. Celotex, 477 6 U.S. at 324; see McElwain, 244 F. Supp. 3d at 1097-98. UWMC is therefore entitled to 7 summary judgment on these claims. 8 H. Unpaid Wages 9 Ms. Spokoiny alleges that UWMC violated RCW 49.52.050 and 49.52.070 by 10 failing to compensate her for missed meal breaks and unpaid preceptor pay. (Am. 11 Compl. ¶¶ 57-61; id. at 14.) She asserts that she was entitled to this pay pursuant to the 12 Washington State Nurses Association (“WSNA”) union contract. (Id. ¶¶ 58-59.) 13 “By their own terms, sections 49.52.050(2) and 49.52.070 . . . apply only where 14 the nonpayment of wages is conducted ‘willfully and with intent to deprive the employee 15 of any part of [her] wages.’” Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1050 16 (9th Cir. 1995) (quoting RCW 49.52.050(2)). “[T]he nonpayment must be the result of 17 knowing and intentional action by the employer, rather than of a bona fide dispute as to 18 the obligation of payment.” Edman v. Kindred Nursing Ctrs. W., LLC, No. 19 C14-1280BJR, 2016 WL 6836884, at *11 (W.D. Wash. Nov. 21, 2016) (citing Schilling 20 v. Radio Holdings, Inc., 961 P.2d 371, 375 (Wash. 1998)). “Dismissal of such claims on 21 summary judgment is permitted when there is no evidence that the employer acted 22 willfully.” (Id.) 1 Ms. Spokoiny has not sustained her burden on summary judgment because she has 2 failed to present evidence suggesting that UWMC willfully withheld payment of her 3 wages. Although UWMC policy required Ms. Spokoiny to document missed breaks and 4 lunches in UWMC’s software program, and although Ms. Spokoiny’s supervisor 5 “encouraged her to use the [program]” and gave her a toolkit with “guidelines for 6 recording missed lunches and breaks,” Ms. Spokoiny did not enter any missed breaks or 7 lunches. (Petritz Decl. ¶ 14; Spokoiny Dep. at 198:17-199:9 (acknowledging that she did 8 not document her breaks and lunches).) Similarly, Ms. Spokoiny acknowledges that she 9 never recorded the time she worked as a preceptor and that she was never “officially 10 assigned to a preceptor role.” (See Spokoiny Dep. Ex. 30 at DEF_001995; see Spokoiny 11 Dep. at 336:14-2; see also Petritz Decl. ¶ 14 (stating that the clinic where Ms. Spokoiny 12 worked “was not using ‘preceptors,’ specifically defined by the WSNA Agreement”)). 13 Ms. Spokoiny may have trained new employees (see 1st Spokoiny Decl. ¶ 46), but there 14 is no evidence she was “assigned in writing . . . as a Preceptor,” a prerequisite to be 15 eligible for preceptor pay under the WSNA contract (Spokoiny Dep. Ex. 30 at 16 DEF_001994). 17 Accordingly, UWMC is entitled to summary judgment on Ms. Spokoiny’s claims 18 under RCW 49.52.050 and 49.52.070 because she has presented no evidence from which 19 a reasonable factfinder could conclude that UWMC willfully withheld wages owed to 20 her. 21 // 22 // 1 I. Public Records Act 2 Finally, Ms. Spokoiny asserts that UWMC has violated the PRA, RCW 42.56. 3 (Am. Compl. ¶¶ 74-83.) Ms. Spokoiny filed public records requests related to her time at 4 UWMC on June 17, 2020, and April 1, 2021. (Am. Compl. ¶¶ 74, 78.) Ms. Spokoiny 5 believes that UWMC “intentionally delayed” responding to her requests, arguing the 6 “[e]vidence . . . shows that while documents responsive to” her requests “were fully 7 available by October 30, 2020 and . . . April 7, 2021, neither set of documents were 8 provided to [her] until August 2023 (i.e. more than 2 years later).” (Resp. at 13.) The 9 court concludes that the evidence falls short of raising a triable issue with respect to Ms. 10 Spokoiny’s PRA claims. 11 Upon receiving a request for public records under the PRA, “the agency may 12 respond in one of three ways: produce the records, ask for more time or clarification, or 13 deny the request along with a proper claim of exemption.” Belenski v. Jefferson Cnty., 14 378 P.3d 176, 179 (Wash. 2016). RCW 42.56.550 provides a cause of action for citizens 15 to challenge violations of the PRA. When considering alleged violations of the PRA, the 16 proper inquiry is “[w]hether the agency responded with reasonable thoroughness and 17 diligence.” Freedom Found. v. Dep’t of Soc. & Health Servs., 445 P.3d 971, 981 (Wash. 18 Ct. App. 2019), rev. denied, 1 Wash. 3d 1011 (2023). An agency is not bound to its 19 original estimate of the time it will take to respond to the request, and reasonableness 20 “must be based on a forward-looking evaluation at the time of the estimate, not on a 21 backward-looking evaluation after the fact.” Conklin v. Univ. of Wash. Sch. of Med., 25 22 // 1 Wash. App. 2d 1010, No. 83200-0-I, 2023 WL 21565, at *9, (2023) (unpublished10) (first 2 citing Hikel v. City of Lynnwood, 389 P.3d 677, 681 (Wash. Ct. App. 2016), and then 3 quoting Freedom Found., 445 P.3d at 978). 4 Here, UWMC timely acknowledged Ms. Spokoiny’s public records requests and 5 produced documents on a rolling basis. (Saunders Decl. (Dkt. # 19) ¶ 14, 18 (stating that 6 documents were produced in batches starting March 5, 2021, through August 17, 2023); 7 see also id. ¶ 16, Ex. 4 (“First Response”) at 1 (acknowledging Ms. Spokoiny’s first 8 request one week after it was submitted); id. ¶ 18, Ex. 8 (“Second Response”).) 9 (acknowledging Ms. Spokoiny’s second request one week after it was submitted).) Ms. 10 Spokoiny submitted her requests during the height of the COVID-19 pandemic, and the 11 University of Washington’s Public Records Office (“PRO”) informed her that there were 12 over 300 other open requests and over 1.5 million pages of records that needed review at 13 the time. (Second Response at 3.) Ms. Spokoiny responded to the PRO in part as 14 follows: “Surely you can simply ask . . . for the documents and receive within days. . . . 15 I will save you 12 months and copy [a document custodian] on this response.” (Id. at 4.) 16 Ms. Spokoiny emphasizes the PRO’s delay in producing documents but does not 17 provide any evidence suggesting that UWMC’s delay was unreasonable. (See generally 18 Resp.) As UWMC argues, and as Ms. Spokoiny’s email to the PRO suggests, Ms. 19 // 20 10 Although unpublished opinions of the Washington Court of Appeals “have no precedential value and are not binding upon any court,” they “may be accorded such persuasive 21 value as the court deems appropriate.” Wash. Gen. Rule GR 14.1; see also Emps. Ins. of Wausau v. Granite State Ins. Co., 330 F.3d 1214, 1220 n.8 (9th Cir. 2003) (“[W]e may consider 22 unpublished state decisions, even though such opinions have no precedential value.”). 1 Spokoiny erroneously equates “available records” with those “ready for production” and 2 ignores the global circumstances in which she made her requests, the backlog of other 3 requests ahead of hers, and the 1.5 million pages of records requiring review. (Reply at 4 11; see also Second Response at 4.) Ms. Spokoiny also ignores UWMC’s discussion of 5 Conklin, a case in which the Washington Court of Appeals determined that similar delays 6 under similar circumstances were reasonable and did not violate the PRA. (See Mot. at 7 25); See generally Resp.) See Conklin, 2023 WL 21565, at *6, *9-11 (holding that the 8 University of Washington’s 307-day delay was not unreasonable where “the COVID-19 9 pandemic impacted the records response” and the evidence demonstrated that UW acted 10 diligently). Ms. Spokoiny cites just one case in support of her argument, but as Conklin 11 explains, the school district in that case was not “diligently working on any requests”— 12 unlike UWMC in this case. (See Resp. at 14 (citing Cantu v. Yakima Sch. 13 Dist. No. 7, 514 P.3d 661 (2022))); see also Conklin, 2023 WL 21565, at *11 14 (distinguishing Cantu). 15 Ms. Spokoiny provides no evidence to refute UWMC’s evidence that the PRO’s 16 delay was reasonable. Ms. Spokoiny speculates that the PRO’s production “was 17 intentionally delayed” because “the average time for production of any one request 18 should be around 4 months.” (Resp. at 13-14 (arguing that because the 321 requests in 19 the PRO’s backlog in August 2023 represented “roughly 1/3 of the total annual requests,” 20 the production time should have been only 1/3 of the year).) But the number of “total 21 annual requests” does not reveal the number of requests actually pending, nor does it 22 have any bearing on the average timeframe for responding to a given PRA request. Ms. 1 Spokoiny’s deduction also ignores the context of each request and other factors that may 2 contribute to delay, such as staff resources. The question is whether UWMC acted 3 reasonably with respect to Ms. Spokoiny’s particular requests, and Ms. Spokoiny has 4 directed the court to no evidence from which a reasonable factfinder could conclude that 5 it did not. UWMC is therefore entitled to summary judgment on this claim. 6 V. CONCLUSION 7 For the foregoing reasons, the court GRANTS UWMC’s motion for summary 8 judgment (Dkt. # 12) and DISMISSES this matter with prejudice. UWMC’s motion to 9 reset the trial date (Dkt. # 29) is DENIED as moot. 10 Dated this 4th day of January, 2024. A 11 JAMES L. ROBART 12 United States District Judge 13 14 15 16 17 18 19 20 21 22