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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                       No. 29700-4-III

       Korsmo, A.C.J. (dissenting)  --  Rochelle Cornwell failed to demonstrate that a 

genuine issue of material fact existed because she produced no evidence to rebut her 

employer's showing that there was a legitimate reason for her discharge.  Accordingly I 

would affirm. 

       The correct analytical framework for summary judgment in an employment 

discrimination case was laid out by this court in Renz v. Spokane Eye Clinic, P.S., 114 

Wn. App. 611, 60 P.3d 106 (2002).  First, the employee must make out a prima facie case 

of retaliation -- this establishes a rebuttable presumption of discrimination.  Id. at 618.  

"The evidentiary burden then shifts to the employer to produce admissible evidence of a 

legitimate, nondiscriminatory, nonretaliatory reason for the discharge."  Id. If the 

employer is able to do this, then the rebuttable presumption vanishes, and the burden 

shifts back to the employee, who must then create a genuine issue of material fact by 

showing that the employer's stated reason for the adverse discrimination was pretextual.  

Id. at 619.  If the employee fails to do this, the employer is entitled to dismissal as a  

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

matter of law.  Id.

       Here, it is apparent from the record that Ms. Cornwell has made a prima facie case 

of employment discrimination based upon the timing of her termination vis-a-vis her 

request for worker's compensation.  It is equally apparent from the six affidavits 

submitted by Roses & More (Roses) that it has shown a nondiscriminatory reason for the 

discharge -- customer dissatisfaction and the threat of lost business.  Thus, the burden to 

produce some evidence demonstrating pretext shifted to Ms. Cornwell.  Id.  

       Ms. Cornwell could have met this burden with evidence that: (1) the reasons stated 

by Roses have no basis in fact, (2) even if based in fact, Roses' actions were not 

motivated by these reasons, or (3) the reasons are insufficient to motivate an adverse 

employment decision.  Id.  It is axiomatic that the party opposing a motion for summary 

judgment "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) (emphasis added).

Accordingly, Ms. Cornwell must provide some affirmative evidence outside of her 

affidavit to meet this burden.  

       In Renz, the appellant was terminated for alleged customer service issues.  Renz, 

114 Wn. App. at 616.  Her employment discrimination suit was dismissed on summary 

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

judgment.  Id. at 617.  On appeal, this court held that she had provided sufficient 

cumulative evidence to meet her burden of demonstrating pretext.  The evidence included 

coworker testimony regarding the quality of her work and the inferences to be drawn 

from her alleged customer service issues in relation to her recently completed 90-day 

evaluation.  Id. at 624-625.  

       Here, unlike in Renz, the cumulative record in this case does not support Ms. 

Cornwell's assertion of pretext.  Although she argues that the absence of a 

contemporaneously created document outlining customer complaints creates an 

inferential question of fact, there is no showing that Roses was under an obligation to 

document customer complaints or that it was required to inform employees when such 

complaints occur.  Roses' policies merely require it to document any disciplinary action

taken, up to and including termination.  Clerk's Papers (CP) at 100-102.  Here, the only 

disciplinary action taken in response to the customer complaints and threats of lost 

business was Ms. Cornwell's termination.  CP at 42.  Thus, the absence of 

contemporaneous documentation of customer complaints is irrelevant. 

       Nor does the "temporal coincidence" between her request for worker's 

compensation and her termination support her burden.  The sequence of events as alleged 

is what creates Ms. Cornwell's prima facie case; it is not sufficient to sustain her burden 

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

to provide some evidence of pretext.  As in Renz, she could have submitted affidavits 

from coworkers or from customers, or any other form of affirmative evidence to 

corroborate her affidavit.  However, she did not do so, and the mere coincidence of her 

request and her termination, along with the general denial in her affidavit, are simply 

insufficient to meet her burden.  She cannot rely upon the presumption that constituted 

her prima facie case to establish a pretext in rebuttal of the employer's case.

       Finally, it is argued that pretext may also be inferred because the reason behind 

Ms. Cornwell's termination is in stark contrast to what she was told at her 90-day review.  

However, the record shows that customer complaints occurred throughout her 

employment, which necessarily includes the time after her April evaluation.  In particular, 

one customer's affidavit states that she informed Roses of her refusal to work with Ms. 

Cornwell in July 2009 -- three months after the 90-day review.  CP at 54.  At a minimum, 

this single post-evaluation complaint was sufficient to provide a legitimate reason for her 

discharge, and she has not met her burden to provide any evidence of pretext involving it. 

       I respectfully dissent. 

                                                    _____________________________
                                                            Korsmo, A.C.J.

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