Opinion Information Sheet

			

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CRAIG RICE, an individual,                  )       NO. 65936-7-I
                                            )
                      Appellant,            )       DIVISION ONE
               v.                           )
                                            )
OFFSHORE SYSTEMS, INC.,                     )
a Washington corporation,                           )      ORDER GRANTING MOTION
                                            )       TO PUBLISH OPINION
                      Respondent.           )
                                            )

       Appellant, Craig Rice, has filed a motion to publish opinion filed January 17, 

2012.  Nonparty Gregory Miller has filed a joinder in appellant's motion to publish, and 

respondent has filed a response.  The court has determined that the motion to publish 

should be granted; therefore, it is

       ORDERED that appellant's motion and nonparty motion to publish are granted.

       DATED this ____ day of ___________ 2012.

                                                           __________________________
                                                                          Judge 

65936-7-I/2

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CRAIG RICE, an individual,                  )       NO. 65936-7-I
                                            )
                      Appellant,            )       DIVISION ONE
               v.                           )
                                            )
OFFSHORE SYSTEMS, INC.,                     )
a Washington corporation,                           )      UNPUBLISHED OPINION
                                            )
                      Respondent.           )       FILED:

       Lau, J.  --  Craig Rice sued his employer, Offshore Systems, Inc. (OSI), after he 

was terminated for alcohol intoxication and disorderly conduct involving a vessel fire at 

OSI's port facility.  Rice contends OSI terminated his employment as a result of age 

discrimination.  Because Rice presented evidence of discriminatory pretext sufficient to 

create material fact issues, we reverse summary judgment in OSI's favor.
                                           FACTS1

       We view the facts in the light most favorable to Rice.  In 1991, Rice began 

working for OSI at age 43 as a stevedore.  The work there is "very demanding" and 

"[t]he working environment . . . [is] very much like a Wild West atmosphere." Rice held 

positions as forklift driver, night foreman, and, finally, yard foreman -- the third-most 

senior position at the facility.  Supervisor Jared Davis described Rice's work ethic and 

       1 Below, OSI submitted declarations and deposition excerpts from Jared Davis 
and Nicholas Reed, deposition excerpts from Rice, Rice's interrogatory responses, and 
exhibits.  Rice submitted a declaration, OSI's responses to requests for admissions, 
Davis and Reed deposition excerpts, and a declaration from Andrew Murphy.  The 
parties also submitted attorney declarations.
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understanding of the job as very good.  He also rated Rice's attendance and job 

knowledge, as "excellent" on an employee evaluation.  Over the years, Rice earned 

promotions, pay raises, and bonuses.  He also earned certification as the facility's

safety and training officer.  This required 40 hours course work on fire and crisis 

management and annual refresher courses on emergency preparedness and response.  

Rice testified that he frequently entertained OSI employees and customers at his home 

and on his boat.  OSI customer Andrew Murphy testified that any time his crew needed 

help, "[Rice] was always willing to provide whatever services he could so we could get 

our job done as efficiently as possible."  

       In 2000, OSI hired Davis, about age 25, as its operations manager.  Davis and 

Rice got along until about 2005.  Rice testified Davis began making derogatory 

comments about his age.  He described that Davis frequently referred to him as an "old 

goat" in front of other employees, "you're too old to stay on the job," and repeatedly 

tried to shift Rice's job duties to a younger employee, Matt Scott.  Rice viewed these 

remarks as serious, not innocently made or said jokingly.  These comments continued 

throughout 2006 and 2007, when Davis fired him.  These remarks encouraged other 

employees to make similar age derogatory comments.  Assistant yard foreman 

Nicholas Reed, who worked for Rice, overheard employees comment that Rice was 

going senile.  Reed could not tell whether these comments were jokes or serious.  

       On December 12, 2007, a vessel owned by OSI's customer, Fishing Company of 

Alaska (FCA), caught fire while tied to another vessel moored at the north end of OSI's 

main dock.  At the time, Rice was off duty and at home.  Reed, who was also off duty, 

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heard about the fire and went to Rice's home.  Reed said the house smelled of alcohol

and Rice was passed out or asleep on the couch.  Reed woke Rice up, and because 

Reed "was kind of in a panic . . . and . . . didn't know what to do," Rice told him to stay 

calm.  Reed testified that Rice was intoxicated based on the alcohol smell, his 

demeanor at the fire, and slurred speech.  Rice testified he had consumed "a couple of 
drinks" at dinner but denied that he was intoxicated. 2  Rice testified he took charge of 

the scene only because OSI failed to follow its general practice requiring at least two 

senior managers to remain on site at all times.  Davis acknowledged no senior 

managers were present during the fire and Rice was the only senior management 

person on site.

       Rice testified that when he arrived at the fire scene, Reed "was disoriented and 

in a state of panic" and "repeatedly asked for [Rice's] instruction on what to do."  Rice

also described the fire scene:

       39. . . . .  I became concerned because the police and fire officials were not 
            communicating with [Reed] or I about the status of fire and whether there 
            was any danger to OSI's dock, fuel storage tanks, or employees. . . .   
       . . . . 
       42.  Without any information from police or fire officials, I could only observe the 
            thick black smoke and guess whether the fire was out of control. . . .
       43.  . . . .  As time continued to pass without any update from police or fire 
            officials, I became more assertive. . . .
       . . . . 
       45. Frustrated with the lack of information, I contacted Dunlop Towing to see if a 
            tug boat was available in the event the fire was not contained.  [An FCA 
            representative also contacted Dunlop Towing for the same purpose.  No tug 
            boat was ordered.]
       . . . . 

       2 Rice also testified due to the harsh and demanding work environment, OSI 
employees and others working at Dutch Harbor frequently drank excessively and used 
foul language.  As a result, fist fights were common occurrences.
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       48.  . . . . I became even more concerned when fire officials asked [Reed] and I 
       to provide water hoses to fight the fire" but still instructed Reed to "provide fire 
       officials with whatever they needed."

Declaration of Craig Rice.  Rice denied OSI's claims that he used foul or derogatory 

language, spat towards a police officer, interfered with or harassed police or fire 

officials, or attempted to cut the lines to the FCA vessel.  He also denied being 

intoxicated or mistreating OSI employees, customers, or local officials.    

       Police reports prepared by Unalaska Officer Brandon Hunter and Sergeant 
Shockley3 described the fire scene events.4  While waiting for updates, Rice 

"repeatedly attempted to interfere with the fire response, stating that it 'wasn't the fire 

department's call what happened at his dock.'"  Officer Hunter reported that Rice 

appeared upset about the fire scene and demanded information about the fire's status.  

Rice appeared intoxicated and irrational.  The reports also stated that fire official 

Sydney Johnson thought fuel tanks presented little danger to the OSI personnel or 

facility.  The fire was "relative[ly] small" and "all signs pointed towards its being 

contained" on the vessel.  Rice threatened to cut the FCA vessels loose to be towed 

out to the bay to burn.  Sergeant Shockley saw Rice's disruptive behavior and

       3 Sergeant Shockley's first name is not in our record.

       4 Officer Hunter and Sergeant Shockley prepared the incident reports based on 
their own observations and statements obtained from numerous witnesses at the 
scene.  OSI submitted no deposition or declaration testimony from any police officers, 
fire officials, or any witnesses mentioned in the police reports except Reed.  And it 
submitted no deposition or declaration testimony from any witnesses Davis spoke to 
during his investigation.  Davis had no personal knowledge about the fire incident.  As 
such, the admissibility of the police reports is limited to show OSI's motive for firing 
Rice as discussed below.
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approached him.  She explained to Rice that cutting the vessels loose was not an 

option.  She also told Rice that the fire department had control over the scene until the 

fire was contained and Rice should allow them to perform their jobs.  Rice began 

shouting at her that he "was in charge of OSI," and he demanded that "the two FCA 

vessels be towed into the bay and left to burn out there."  

       The reports further explained that as Rice started to move towards a group of 

firefighters, Shockley physically restrained him.  Shockley reported that he screamed at 

her to get her hands off him and she could not tell him what to do.  Reed testified he 

saw Rice spit in Shockley's direction and heard him say "dyke" and "bitch." Police 

officers told Rice that he was disorderly and would be arrested if he did not calm down.  

After fire captain Roger Deffendall spoke to Rice about the fire's status, Rice calmed 

down and left the scene.  

       When Davis returned from vacation, he spoke to Shockley, Reed, Glenn 

McConachie (the OSI night foreman on duty during the fire), and FCA's representative

Sherry Pugh about the fire.  He also reviewed the police reports.  Rice claims Davis 

never spoke to him to learn his version of the events.  Davis never spoke with Officer 

Huntley, fire officials, or Alpha Welding employees who were present at the fire scene.  

       After completing his investigation, Davis telephoned Rice on January 5, 2008.  

Davis fired Rice and explained to him, "[You] tried to cut the lines on the FCA boat."  

According to Rice, this was the only reason given by Davis.  Rice denied it, explaining,

"[I]t would have been impossible for me to cut the lines because they were several 

inches in diameter."  Rice testified OSI violated its own procedures by failing to notify 

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and then obtain his explanation before firing him.  Rice testified he received a January 

18, 2008 termination letter addressed "to whom it may concern." The letter provided all 

new grounds for his termination with no mention of the cut lines incident:

           ?  The example his actions set for fellow employees.
           ?  Being intoxicated while on the job.
           ?  Harassing Police and Fire officials while responding to an emergency.
           ?  Creating bad relations with OSI customers and local officials.
           ?  The extremely poor treatment of employees that has been happening for 
              many years, even while being warned and worked with to stop such 
              actions.
           ?  Possibly putting OSI in serious liability regarding the above incident.

       Rice filed suit, alleging OSI discriminated against him based on his age in 

violation of the Washington Law Against Discrimination, chapter 49.60 RCW.  The 

court granted OSI's summary judgment motion.  Rice appeals.

                                          ANALYSIS

       Motion to Strike

       Before we review the trial court's decision granting summary judgment, we 

address whether the court erred by considering the Davis and Reed deposition 

excerpts and two police reports.  We review de novo a trial court ruling on a motion to 

strike evidence made in conjunction with a summary judgment motion.  Momah v. 

Bharti, 144 Wn. App. 731, 749, 182 P.3d 455 (2008) ("'The de novo standard of review 

is used by an appellate court when reviewing all trial court rulings made in conjunction 

with a summary judgment motion.'") (alteration in original) (quoting Folsom v. Burger 

King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998)).  In response to OSI's summary 

judgment motion, Rice moved to strike these excerpts and reports because (1) the 

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reports violate RCW 46.52.080 and lack authentication and (2) the evidence consists of 
hearsay, conclusion, and speculation contrary to CR 56(e).5  Officer Hunter and 

Sergeant Shockley prepared incident reports that described Rice's alleged conduct 

during the fire: "attempted to interfere with the fire response . . . appeared intoxicated . 

. .acting irrationally . . . unreasonably . . . threatened to cut burning and neighboring 

vessels loose . . . extremely agitated . . . yelling at officers," to the point where police 

officers threatened to arrest him.  We conclude the reports were properly authenticated 

and RCW 46.52.080 does not apply.

       ER 901 requires the proponent of the evidence to make a prima facie showing

that the evidence is authentic -- it is what it purports to be.  State v. Danielson, 37 Wn. 

App. 469, 471, 681 P.2d 260 (1984).  Because under ER 104 authenticity is a 

preliminary determination, the court may consider evidence that might otherwise be 

objectionable under other rules.  City of Bellevue v. Mociulski, 51 Wn. App. 855, 859, 

756 P.2d 1320 (1988).  In making this preliminary determination, the court considers 

only the evidence offered by the proponent and disregards any contrary evidence 

offered by the opponent.  See, e.g., State v. Tatum, 58 Wn.2d 73, 360 P.2d 754 (1961).  

       5 CR 56(e) is explicit in its requirements, which serve the purpose of a summary 
judgment motion.  Affidavits (and declarations) must be (1) made on personal 
knowledge, (2) shall set forth such facts as would be admissible in evidence, and 
(3) should show affirmatively that affiant is competent to testify to the matters stated.  
Further, "[w]hen a motion for summary judgment is made and supported as provided in 
this rule, an adverse party may not rest upon the mere allegations or denials of his 
pleadings, but his response, by affidavits or as otherwise provided in this rule, must set 
forth facts showing that there is a genuine issue for trial.  If he does not so respond, 
summary judgment, if appropriate, shall be entered against him."  CR 56(e).

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65936-7-I/9

Once a prima facie showing has been made, the evidence is admissible under ER 901.  

The opponent is free to object based on any other rules that may bar the evidence or 

offer contradictory evidence challenging authenticity.  OSI made a prima facie showing

that the police reports were prepared by Unalaska police officers who responded to the 

scene and interacted with Rice.  Davis's July 2010 declaration established the reports'

authenticity.  Under ER 901(b)(4), authenticity may be established based on distinctive 

characteristics such as appearance, contents, substance, internal patterns, together 

with circumstances.  The police reports contain unique Unalaska police department 

logo, incident number, specific facts related to the vessel fire, and the identity and 

signature of the two officers who prepared the reports.  Rice produced these reports in 

discovery and never challenged their authenticity -- that the reports in question are what 

its proponent claims.

       Rice claims RCW 46.52.080 bars the police reports admission.  This provision 

expressly applies only to vehicle accidents -- "[n]o such accident report or copy thereof 

shall be used as evidence in any trial, civil or criminal, arising out of an accident . . . ."  

RCW 46.52.080.  The provision does not apply.  He also argues the reports contain 

inadmissible hearsay.  We disagree.  The reports were not offered to show Rice was 

drunk and disorderly.  They were offered to show Davis's motivation for the decision to 

terminate Rice's employment.  See ER 803(a)(3) (an exception to the hearsay rule is a 

statement of the declarant's then existing state of mind, such as motive); Domingo v. 

Boeing Employees' Credit Union, 124 Wn. App. 71, 79, 98 P.3d 1222 (2004) ("Walsh's 

testimony was not offered for the truth of the matter asserted.  Rather, it was offered to 

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show Walsh's motivation for the decision to reprimand and eventually terminate 

Domingo's employment.").

       Rice also argues that the Davis and Reed declarations and depositions lack 
personal knowledge and violate the rule against hearsay, conclusion, and speculation.6  

Davis's testimony about the missing written reprimands for Rice satisfy the personal 

knowledge requirement because Davis supervised Rice and wrote the reprimands 

about his job deficiencies.  We agree Davis's testimony that Rice may have removed 

them from his own personnel file constitutes inadmissible speculation.

       Reed's testimony describing Rice's intoxication at the fire scene was based on 

seeing and talking to Rice.  He said Rice's house smelled like alcohol and he slurred 

his speech.  Reed also observed Rice yelling at Sergeant Shockley.  We conclude 

Rice's evidence arguments fail.

       Age Discrimination Claim

       Rice argues the trial court erred by dismissing his age discrimination claim 

because he presented sufficient material evidence of discriminatory pretext to defeat 

summary judgment.  OSI counters that the record shows minimal to no pretext evidence

making summary judgment appropriate.

       "We review summary judgments de novo and conduct the same inquiry as the 

trial court, considering all facts submitted and all reasonable inferences in the light 

       6 OSI correctly argues that on appeal, Rice failed to "specify or cite to the record 
which statements in what declarations [and deposition excerpts] he objected to as 
required by RAP 10.3(a)(5)." Resp't's Br. at 23 n.7.  We note Rice responds by 
pointing to his "already submitted detailed briefing" below.  Appellant's Reply Br. at 21 
n.5
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most favorable to the nonmoving party."  Domingo, 124 Wn. App. at 78 (footnote 

omitted).  "Summary judgment should rarely be granted in employment discrimination 

cases."  Sangster v. Albertson's, Inc., 99 Wn. App. 156, 160, 991 P.2d 674 (2000).

       "It is an unfair practice for any employer . . . [t]o discharge or bar any person 

from employment because of age . . . ."  RCW 49.60.180(2).  Washington courts look 

"to federal cases construing the Age Discrimination in Employment Act of 1967 (ADEA)"

for guidance.  Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 361, 753 P.2d 

517, 520 (1988).

       In an action alleging age discrimination in employment, the employee has the 

initial burden of presenting a prima facie case of age discrimination.  Roberts v. Atl. 

Richfield Co., 88 Wn.2d 887, 892, 568 P.2d 764 (1977).  To make out a prima facie 

case, an employee must show:  (1) he or she was within the statutorily protected age 

group, (2) was discharged, (3) was doing satisfactory work, and (4) was replaced by a 

younger person.  Grimwood, 110 Wn.2d at 362 (citing McDonnell Douglas Corp. v. 

Green, 411 U.S. 792, 804, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)).  The protected age 

group includes employees 40 years of age and older.  RCW 49.44.090(1).  "'A prima 

facie case under McDonnell Douglas raises an inference of discrimination only 

because we presume these acts, if otherwise unexplained, are more likely than not 

based on the consideration of impermissible factors.'" Sellsted v. Wash. Mut. Savs.

Bank, 69 Wn. App. 852, 862, 851 P.2d 716 (1993) (quoting Furnco Constr. Corp. v. 

Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 57 L. Ed. 2d 957 (1978)).  It is undisputed 

that Rice presented enough evidence to make out a prima facie age discrimination

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case.

       Once the employee makes a prima facie case, the burden then shifts to the 

employer who "must articulate a legitimate, non-discriminatory reason for termination.  

The employer's burden at this stage is not one of persuasion, but rather a burden of 

production." Grimwood, 110 Wn.2d at 364.  OSI met this burden with its statement that 

the reason for terminating Rice was his improper conduct at the fire scene.

       Once the employer meets its burden, the presumption of discrimination raised by 

the prima facie case is rebutted.  Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 

255, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).  The employee resisting summary 

judgment then must produce evidence that raises a genuine issue of material fact on 

whether the reasons given by the employer for discharging the employee are unworthy 

of belief or are mere pretext for what is in fact a discriminatory purpose.  Sellsted, 69 

Wn. App. at 859.  The employee is not required to produce evidence beyond that 

offered to establish the prima facie case, nor introduce direct or "smoking gun"

evidence.  Sellsted, 69 Wn. App. at 860.  Circumstantial, indirect, and inferential 

evidence will suffice to discharge the plaintiff's burden.  Sellsted, 69 Wn. App. at 861.  

He must meet his burden of production to create an issue of fact but is not required to 

resolve that issue on summary judgment.  "For these reasons, summary judgment in 

favor of employers is often inappropriate in employment discrimination cases."  

Sellsted, 69 Wn. App. at 861.  The issue at this point is whether, notwithstanding OSI's 

statement of a nondiscriminatory reason for termination, Rice's evidence is sufficient to 

support a reasonable inference that a discriminatory or retaliatory motive was a 

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substantial factor in his discharge.  See Mackay v. Acorn Custom Cabinetry, Inc., 127 

Wn.2d 302, 310, 898 P.2d 284 (1995).

       An employee can show that the employer's proffered reason is pretextual in 

several ways:

       "(1) the company's reasons have no basis in fact; or (2) if they have a basis in 
       fact, by showing that they were not really motivating factors; or (3) if they are 
       factors, by showing they were jointly insufficient to motivate the adverse 
       employment decision, [e .g.], the proffered reason was so removed in time that it 
       was unlikely to be the cause or the proffered reason applied to other 
       employee[s] with equal or greater force and the company made a different 
       decision with respect to them."

Sellsted, 69 Wn. App. at 859, n.14 (quoting Grabb v. Bendix Corp., 666 F. Supp. 1223, 

1244 (N.D. Ind.1986)).

       Generally, when an employee produces his or her prima facie case plus 

evidence of pretext, a trier of fact must determine the true reason for the action 

because the record contains reasonable but competing inferences of both 

discrimination and nondiscrimination.  Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 150, 

94 P.3d 930 (2004). The parties agree for summary judgment appeal purposes that 

Rice stated a prima facie age discrimination case and OSI proffered a legitimate, 

nondiscriminatory reason for termination.  The central dispute here is whether Rice met 

his burden of producing sufficient evidence to support a reasonable inference that a 

discriminatory retaliatory motive was a substantial factor in his discharge -- pretext.

       In the face of OSI's evidence discussed above, Rice's evidence outlined above 
sufficiently creates a genuine issue of material fact on the reason for his discharge.7  In 

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addition, Rice's supervisor, Davis, routinely made age-related comments beginning in 
2005 through 2007.8 Davis fired Rice in December 2007 and immediately replaced him 

with a much younger, less experienced employee -- Reed.  Reed acknowledged he 

contacted Rice about the fire to find out what to do and to learn from Rice.  McKnight v. 

Kimberly Clark Corp., 149 F.3d 1125 (10th Cir. 1998) (In order to rely on age related 

statements to establish pretext, plaintiff must show they were made by decision maker).

       And OSI offered inconsistent reasons for terminating Rice's employment, further 

suggesting that none of the reasons given was the real reason for his termination.  

Renz v. Spokane Eye Clinic, P.S., 114 Wn. App. 611, 624, 60 P.3d 106 (2002) 

(Evidence indicating that the employer offered multiple, incompatible reasons or 

inconsistent reasons for the adverse action and rebutting the accuracy or believability 

of the employer's reasons is sufficient to create competing inferences.).

        Rice also explains that contrary to OSI's claims, his actions during the fire were 

reasonable.  Although an employee's mere denial of misconduct alone is insufficient to 

create a genuine issue of material fact, Domingo, 124 Wn. App. at 88-89, Rice's pretext 

       7 OSI argues that "evidence of misconduct is considered from the perception of 
the decision maker, not the employee." Resp't's Br. at 12.  OSI asserts that the record 
contains no facts undermining Davis's honest belief that Rice engaged in misconduct.  
Although it is true that "[i]t is not unlawful for an at-will employee to be discharged 
because he or she is perceived to have misbehaved . . . ," Hill v. BCTI Income Fund-I, 
144 Wn.2d 172, 190 n.14, 23 P.3d 440 (2001), the evidence viewed as a whole in 
Rice's favor raises an issue of fact regarding the real reason OSI fired him.
       8 We note Davis's age-related comments constitute direct evidence of his 
alleged discriminatory intent. And as discussed in footnote 4, OSI submitted no sworn 
testimony from any eye witnesses with personal knowledge of Rice's conduct at the fire 
(except Reed).  A rational jury could disbelieve Reed's testimony since he benefited the 
most from Rice's termination.
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evidence constitutes more than mere denial.  For example, even though off duty, he felt 

compelled to oversee the fire scene because OSI neglected to have two senior 

managers remain on site, a violation of its own policies.  Davis confirmed the existence 

of such a policy.  Rice also described that his assertive but reasonable conduct under 

the circumstances was necessary to protect the company's property and employees.  

He denied attempting to cut the vessel's line but acknowledged calling a tug boat 

company to tow the FCA vessel if required by the quickly evolving situation.

       Rice also challenges OSI's stated termination reason that he was "[c]reating bad 

relations with OSI customers and local officials."  The record contains no declaration or 

deposition testimony from any OSI customers that Rice's conduct harmed customer 

relations with OSI.  Although Davis's testimony suggests FCA representative Pugh was 

displeased with Rice's conduct at the fire, the record contains no declaration or 

deposition testimony from Pugh.  In contrast, OSI customer Andrew Murphy testified 

that Rice was always a helpful OSI employee.  Davis testified OSI lost no accounts or 

business resulting from Rice's conduct at the fire scene.  The record shows no contrary 

evidence on this point.

       Rice also challenges OSI's statement that his conduct constituted "extremely 

poor treatment of employees that has been happening for many years . . . ." Rice 

acknowledged one written reprimand for alleged employee mistreatment, which he 

disputed at the time.  He testified to getting along well with employees and frequently 

hosting social events at his home.  He also testified that he frequently entertained OSI 

customers, and the record contains testimony from one customer who complimented 

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his work.  Davis testified he verbally warned and counseled Rice several times about

mistreating employees and excessive drinking.  Rice denies this.  Davis also claims he 

wrote several reprimands to document his concerns.  Rice's personnel file contains 
only one written reprimand discussed above.9

       We conclude the record contains reasonable but competing inferences of 

discriminatory intent because OSI's reasons are called into question by the inconsistent 

reasons given and evidence rebutting their accuracy and credibility.  We reverse 

summary judgment in favor of OSI and remand for proceedings consistent with this 

opinion.

                                                    _____________________________

WE CONCUR:

____________________________                        _____________________________

       9 OSI improperly speculates that Rice removed other written reprimands from his 
own personnel file.
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