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Seymour v. Western RV

October 17, 1996

JAMES SEYMOUR, APPELLANT,
v.
WESTERN RV INC., A WASHINGTON CORPORATION, RESPONDENT AND CROSS-APPELLANT.



Appeal from Superior Court of Yakima County. Docket No: 94-2-01152-8. Date filed: 01/06/95. Judge signing: Hon. Michael Leavitt.

Authored by Dennis J. Sweeney. Concurring: Philip J. Thompson, Frank L. Kurtz

The opinion of the court was delivered by: Sweeney

SWEENEY, C.J. James Seymour sued his former employer, Western RV Inc., for discrimination and blacklisting. Western responded with an offer of judgment for $100 exclusive of costs and attorney fees, pursuant to CR 68. Mr. Seymour did not accept the offer. Western then moved for summary judgment on the blacklisting claim. Mr. Seymour moved to continue the summary judgment hearing. The court denied his motion. Mr. Seymour then voluntarily dismissed the blacklisting claim. Western requested CR 11 sanctions against Mr. Seymour's attorney. The court denied the request. Western next moved for summary judgment on Mr. Seymour's claim for employment discrimination. The trial court granted that motion. Following dismissal of Mr. Seymour's second and last claim, Western submitted a cost bill including reasonable attorney fees. The court awarded $4,000 in attorney fees and costs.

Mr. Seymour appeals the summary dismissal of his employment discrimination claim and the award of fees and costs to Western. Western cross-appeals the denial of its request for CR 11 sanctions following dismissal of Mr. Seymour's blacklisting claim, as an abuse of discretion.

ISSUES

The parties frame three issues in this appeal.

(1) Is Mr. Seymour's own affidavit that he had more experience in general, and more experience in the specific job he sought, sufficient to overcome Western's explanation of a non-pretexual reason for his discharge? Sellsted v. Washington Mut. Sav. Bank, 69 Wash. App. 852, 859-60, 851 P.2d 716, review denied, 122 Wash. 2d 1018, 863 P.2d 1352 (1993).

(2) Was Western entitled to attorney fees and costs following dismissal of Mr. Seymour's complaint because it filed an offer of judgment pursuant to CR 68 which was not accepted?

(3) Did the trial court abuse its discretion by refusing to impose CR 11 sanctions because Mr. Seymour's attorney failed to independently investigate Mr. Seymour's claim of blacklisting, beyond statements by Mr. Seymour?

We address each of these issues in order.

Discussion

(1) Sufficiency of Mr. Seymour's affidavit to overcome Western's showing of non-pretextual reason for discharge.

The order granting summary judgment presents two questions. First, does the affidavit in response to the summary judgment motion state material facts. And, second, if it does, would those facts be admissible in evidence at trial. Grimwood v. University of Puget Sound, Inc., 110 Wash. 2d 355, 359, 753 P.2d 517 (1988). The facts required by CR 56(e) to defeat a summary judgment motion must be evidentiary in nature. "Ultimate facts or Conclusions of fact are insufficient. Likewise, conclusory statements of fact will not suffice." Id. at 359-60 (citation omitted).

Washington prohibits discrimination "against any person in compensation or in other terms or conditions of employment because of . . . race, creed, color, ...


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