Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ROCHELLE CORNWELL,                                        No.  29700-4-III
                                                )
                      Appellant,                )
                                                )         Division Three
              v.                                )
                                                )
ROSES & MORE, a corporation,                    )         UNPUBLISHED OPINION
                                                )
                      Respondent.               )
                                                )

       Brown, J.  --  Rochelle Cornwell appeals the trial court's summary dismissal of 

her employment wrongful termination and discrimination suit against Roses and More 

(Roses).  She contends the trial court erred by failing to recognize that material facts 

remain.  We agree, and reverse. 

                                            FACTS

       Because we review a summary judgment dismissal we must view the admissible 

facts most favorably for the nonmoving party, Ms. Cornwell.  Vallandigham v. Clover 

Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005).  The facts are drawn 

consistently with this standard of review.    

       In January 2009, Ms. Cornwell was hired by Roses to work as a sales person in  

No. 29700-4-III
Cornwell v. Roses & More

the supply department.  Chris Chandler was Ms. Cornwell's manager.  Ms. Cornwell

was provided a copy of Roses' employee manual and read it carefully.  It partly 

provided for Mr. Chandler to review her performance after a 90-day "Introductory 

Period." Clerk's Papers (CP) at 99.  Mr. Chandler would monitor Ms. Cornwell day-to-

day, partly to ensure she provided "courteous service" and would "impose 

consequences tailored to the circumstances" so she could get a sense of how he 

perceived her performance.  CP at 100, 103.  The manual allowed for telephone 

monitoring, but Roses did not actually monitor the telephones.  Failure to abide by the 

Manual would result in "appropriate disciplinary action."  CP at 102.  "A written record 

of all policy violations is maintained in each individual's personnel file."  Id. 

       Ms. Cornwell constantly asked Mr. Chandler how she was doing and, until her 

work injury on July 29, 2009, he replied, "you are doing great." CP at 78. She received 

one verbal and written warning in April 2009 that coincided with her 90-day review that 

detailed disruptive workplace conduct (singing, dancing, and wandering off), staying on 

task to ensure sales calls were made, and not discussing her wages with other 

employees.  

       On July 29, 2009, Ms. Cornwell reported her work-place hand injury to Roses 

and left to see a doctor where she completed a worker's compensation benefits form.  

She was allowed to return to work with no restrictions except to wear a hand/wrist 

brace.  On July 31, she was placed on restricted duty and, in turn, Roses placed her on 

light duty.  Mr. Chandler vacationed August 5-12.

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       On August 11, 2009, Ms. Cornwell received a document signed by Mr. Chandler 

dated August 4, 2009 (six days after her injury), noting he had heard customer 

complaints and he had spoken to her "many times on the floor about being nicer to 

customers." CP at 83.  Ms. Cornwell swore in her affidavit:  "This never happened."  Id.  

Also on August 11, Ms. Cornwell's doctor ordered her off work for seven days.  When 

she returned to work on August 19, 2009, her employment was terminated.  At the time 

of her termination, Roses demanded she sign a termination letter partly specifying: 

"This decision is based on numerous documented performance issues." CP at 42.  

Roses unsuccessfully challenged Ms. Cornwell's worker's compensation claim.  

       In December 2009, Ms. Cornwell sued Roses for wrongful discharge in violation 

of stated public policies including RCW 49.17.160, and for discrimination on the basis 

of a physical handicap in violation of RCW 49.60.180.  She alleged the reasons 

claimed by Roses for termination were a pretext for retaliation for pursuing worker's 

compensation benefits and a pretext for discrimination on the basis of a physical 

handicap.  

       In December 2010, sixteen months after Ms. Cornwell's termination, Roses filed 

six even-dated customer and employee declarations alleging that, beginning in April 

2009, Roses continuously informed Ms. Cornwell of complaints but her performance did 

not improve; rather, complaints escalated by early July 2009.  They also allege that the 

decision to terminate Ms. Cornwell's employment was made in early July 2009.  

       Job-performance evidence predating Ms. Cornwell's injury is limited to two notes 

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(Exhibit A from Chandler's Declaration) from April 15, 2009 documenting Mr. Chandler 

"took Ms. Cornwell into the small conference room" to discuss proper work behaviors.  

CP at 41.  The notes documented Ms. Cornwell's acknowledged counseling about 

disruptive work-place behavior, ensuring sales calls were made, and not wandering off, 

as noted above.  No evidence predating her injury indicates that Roses had received 

customer complaints about Ms. Cornwell or that she received warnings about customer 

complaints.  And, nothing in the record shows Ms. Cornwell was ever told before her 

injury to be "nicer to customers."

       Roses moved for summary judgment on December 29, 2010, based on the newly 

signed declarations.  Ms. Cornwell responded to the motion for summary judgment and 

filed an affidavit denying the rude behavior claimed by the customers.  She specifically 

denied ever being told that her telephone behavior was inappropriate or that customers 

had complained about her.  The trial court reasoned no question of fact existed about 

whether a legitimate reason for the termination existed and nothing in the record other 

than conjecture and speculation to indicate the termination was retaliatory.  It granted 

summary judgment in favor of Roses, dismissing Ms. Cornwell's claims.  Ms. Cornwell 

appealed.  

                                         ANALYSIS

       The issue is whether the trial court erred in deciding no material facts remained 

and summarily dismissing Ms. Cornwell's claims for disability discrimination and 

wrongful termination.  

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       We review a trial court's grant of summary judgment de novo, engaging in the 

same inquiry as the trial court.  Barker v. Advanced Silicon Materials, LLC, 131 Wn. 

App. 616, 623, 128 P.3d 633 (2006).  Summary judgment is proper if no genuine issues 

of material fact remain and the moving party is entitled to judgment as a matter of law.  

CR 56(c).  "A material fact is one that affects the outcome of the litigation."  Owen v. 

Burlington N. & Santa Fe R.R., 153 Wn.2d 780, 789, 108 P.3d 1220 (2005).  When 

considering a summary judgment motion, the court must construe all facts and 

reasonable inferences in the light most favorable to the nonmoving party.  Lybbert v. 

Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000).  The motion should solely be 

granted if, from all the evidence, reasonable persons could reach but one conclusion.  

Vallandigham, 154 Wn.2d at 26. 

       "The moving party bears the initial burden of showing the absence of an issue of 

material fact." Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).  

If the moving party is a defendant, it may meet this initial burden by showing that there 

is an absence of evidence to support the plaintiff's case.  Id. at 225 n.1.  If the moving-

party defendant meets this initial burden, then the inquiry shifts to the plaintiff.  See 

Young, 112 Wn.2d at 225; Vallandigham, 154 Wn.2d at 26; Hash by Hash v. Children's 

Orthopedic Hosp. & Med. Ctr., 110 Wn.2d 912, 915, 757 P.2d 507 (1988) ("Only after 

the moving party has met its burden . . . does the burden shift to the nonmoving party.") 

The plaintiff then bears the burden of showing sufficient facts to establish the existence 

of every essential case element required at trial.  Young, 112 Wn.2d at 225.  In making 

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this responsive showing, the plaintiff cannot rely on mere allegations, speculation, or 

argumentative assertions, but must set forth specific facts showing a genuine issue.  

Little v. Countrywood Homes, Inc., 132 Wn. App. 777, 780, 133 P.3d 944 (2006); 

Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 132, 769 P.2d 298 

(1989).  

       The essential elements of disability discrimination in a termination context are 

that the plaintiff was disabled, the plaintiff was terminated, the plaintiff was doing 

satisfactory work, and the termination occurred under circumstances that raise a 

reasonable inference of unlawful discrimination.  Anica v. Wal-Mart Stores, Inc., 120 

Wn. App. 481, 488, 84 P.3d 1231 (2004).   The essential elements of wrongful 

termination as retaliation for filing a worker's compensation claim are that the plaintiff 

exercised the statutory right to pursue worker's compensation benefits, the employer 

knew of the claim, the plaintiff was then terminated, and any legitimate reason for 

termination is pretext.  Id. at 490-92.  

       Here, the parties dispute whether Roses terminated Ms. Cornwell for a lawful 

reason, specifically, whether she was terminated for being rude to customers (and 

therefore not doing satisfactory work) or whether that reason was pretext.  

       Ms. Cornwell first contends the trial court erred in not requiring Roses to assume 

the initial summary judgment burden.  We agree.  Indeed, Roses' summary judgment 

motion fails to mention or address this initial burden.  Roses repeatedly argued during 

the hearing that Ms. Cornwell had the initial burden.  The court incorrectly adopted that 

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analysis.  Roses mistakenly repeats this analysis here.  

       Roses is required to show an absence of evidence to support Ms. Cornwell's 

case.  The purported lawful reason for termination here was being rude to customers 

on the phone.  Thus, Roses' initial burden would be to show an absence of evidence 

contradicting their alleged bona fide concern about customer complaints in the spring 

and summer of 2009. Roses argued Ms. Cornwell's solely relied on her self-serving 

statement that she was not rude to customers.  But Ms. Cornwell correctly argues that, 

in addition to her own recollection, inferences can be drawn from the absence of 

contemporaneous customer complaints or disciplinary action combined with the 

temporal coincidence of her work-related injury and discharge.  Further, we must 

accept that Mr. Chandler reassured Ms. Cornwell she was doing great.  And nothing 

but unrelated matters was discussed with her during her 90-day review.  We are 

required under our standard of review to accept the reasonable inferences from these 

circumstances.  That leaves a credibility dispute that must be left for a fact-finder 

unless reasonable minds could reach but one conclusion.  We are in the same position 

as the trial court when considering summary judgments and we cannot reach but one 

conclusion about these facts.

       Moreover, construing the facts in favor of Ms. Cornwell, a material fact issue 

remains regarding pretext.  Even if we were to accept the stated reason for discharge

as not disputed, the timing of her discharge and circumstances of her work-related 

injury raise an inference of pretext.  

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       Finally, Roses relies heavily on Griffith v. Schnitzer Steel Industries, 128 Wn. 

App. 438, 115 P.3d 1065 (2005), for the proposition that lack of documentation does 

not create a triable fact in a wrongful termination case.  In Griffith, the terminated 

employee admitted he had discussions with the employer about each justification for 

his termination before his termination.  As Ms. Cornwell contends, there was no such 

admission here.  The case is distinguishable.  Here, the lack of documentation is 

consistent with Ms. Cornwell's position.  And, Griffith was not decided on summary 

judgment.  Given all, we conclude summary judgment was improper under this record.  

       Reversed.  

       A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

                                                    _______________________________
                                                    Brown, J.

I CONCUR:

____________________________
Siddoway, J.

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