SPECIALTY ASPHALT & CONSTRUCTION, LLC, a Washington limited liability company, and LISA JACOBSEN, an individual, Petitioners,
LINCOLN COUNTY, a Washington State County, Respondent.
Asphalt & Construction LLC and its majority owner, Lisa
Jacobsen (Specialty), brought suit against Lincoln County
(County) for gender discrimination, negligent
misrepresentation, and breach of contract arising out of the
County's bidding and contracting process for a paving
project. Through various motions, Specialty lost all three
claims at the trial court. The Court of Appeals affirmed, and
Specialty petitioned for review. We reverse the Court of
Appeals in part and affirm in part. We hold that Specialty
defeated the County's motion for summary judgment on the
gender discrimination and negligent misrepresentation claims
but the contract claim was properly dismissed. The case is
remanded to the trial court to reinstate the two surviving
FACTS AND PROCEDURAL HISTORY
a licensed contractor that performs paving and maintenance
work, responded to a call for bids from the County for a
paving project. Jacobsen first learned about the project when
the County called her business to ask if it worked in the
area. Jacobsen then received the bid proposal via e-mail from
the County. On two separate pages, the bid proposal stated
that no bond was required. Clerk's Papers (CP) at 293
("No proposal bond or performance bond will be
required."), 297 ("No bid bond or performance bond
is required for this bid."). The bid proposal was
prepared by Phil Nollmeyer, the county operations and permit
coordinator. He used the maintenance project template that
had the no bond required language because bonds are not
required for the purchase of materials or simple maintenance
contracts. The County claimed that Nollmeyer made a clerical
error and that he should have removed the no bond required
proposal announced a scheduled opportunity to view the
project and scope of work prior to the bid deadline (referred
to as a walk-through). Jacobsen was the only contractor to
attend the walk-through, which was led by three county
commissioners and Nollmeyer. At the beginning of the
walk-through, Nollmeyer made a comment that Jacobsen's
shoes with heels were not the most appropriate attire for the
walk-through. During the walk-through, the commissioners
sought Jacobsen's recommendations for the project, which
the County subsequently incorporated into the bid
proposal's addendum 1. A few days after the walk-through,
a male representative of Arrow Concrete & Asphalt
Specialties, Inc. came to see the paving project location.
Nollmeyer showed him where the work locations were and went
over the basic tasks to be performed, essentially giving an
unscheduled private walk-through.
to the bid deadline, Nollmeyer called Jacobsen and asked if
Specialty was going to submit a bid. He discouraged her from
bidding because the project was more trouble than it was
worth. Nevertheless, Jacobsen submitted a bid for
the project on behalf of Specialty. The County also received
a bid from Arrow. According to the addendum 1, the bids would
be opened on August 5, 2013.
August 6, 2013, the County awarded the project to Specialty.
The day after awarding the project to Specialty, the County
began Department of Labor and Industries (L&I) contractor
tracking which allowed the County to track Specialty's
status on an ongoing basis. Nollmeyer testified that the
County normally checks contractor status on the L&I
website prior to awarding bids to ensure that the contractors
are not disbarred. He admitted that he checked
Specialty's status prior to awarding the bid but could
not recall if he did so for Arrow. He denies having initiated
contractor tracking, but the evidence shows that
someone at the County did, unless it truly was a
clerical error on L&I's part. Wash. Supreme Court
oral argument, Specialty Asphalt & Constr. LLC v.
Lincoln County, No. 95085-7 (May 15, 2018), at 30 min.,
40 sec, video recording by TVW, Washington
State's Public Affairs Network,
days after August 5, 2013, because she had not yet been
notified of the award, Jacobsen called the County and asked
who had received the award. The woman on the phone, either
Shelly Johnston, the county auditor, or Marci Patterson, the
deputy clerk to the board of commissioners, told Jacobsen
that Specialty had gotten the award, Nollmeyer had been
directed to call her with news of the award, and a
notification had been sent by mail. The day after her phone
conversation, Jacobsen received the award letter (dated
August 6, 2013) by mail and the commissioners' order
signed by the county commissioners. Jacobsen began to
mobilize resources and materials for the project and told her
assistant to stop accepting new jobs because their schedule
would be full for the season.
days later, Jacobsen received a letter from the County (dated
August 12, 2013) with the contract and contract bond.
Jacobsen signed the contract on behalf of Specialty on August
16, 2013, and on the contract bond, she wrote "[n]o
proposal bond or performance bond required as per page
#2" and left it unsigned. CP at 307. She mailed both
documents back to the County. The county commissioners did
not countersign. After receiving the documents, Johnston
called Jacobsen and told her that the County now required a
bond for the project. Jacobsen objected to this change
because the bid explicitly provided that no bond was required
and because she believed the bond to be a significant item.
Jacobsen also explained that Specialty had performed similar
public works projects for the city of Davenport, located
within the county, without a bond, and that the
County could accept responsibility for proceeding without a
August 19, 2013, the County withdrew the bid award. On or
about August 20, 2013, a new call for bids was sent out with
a bond requirement. Specialty sent a demand letter (dated
August 23, 2013) requesting that the County maintain its bid
award. In the letter, Specialty conceded that the bond was
statutorily required by RCW 39.08.010, but claimed that
failure to require the bond does not void the contract. In
response, the County ceased and withdrew the rebidding
process. The County was willing to proceed with
Specialty's award of the original bid so long as
Specialty obtained the bond. The County also offered to
reimburse Specialty for the expense of the bond premium.
Jacobsen believed that this would expose both parties to
liability for collusion or bid rigging. Sometime after August
19, 2013, Jacobsen had a phone conversation with county
commissioner Scott Hutsell, who described the situation as a
mess. He assured Jacobsen that he would investigate the
available options that would enable the project to go forward
following spring, April 2014, the County contacted Specialty
to see if the project could be done with the bond at the
County's expense. The County indicated that in the
alternative it would look to use the small works roster to
complete the project and invited Specialty to be included on
the roster. Shortly thereafter, Specialty filed suit.
2014, Specialty sued the County for breach of contract,
seeking injunctive and declaratory relief. In October 2015,
over a year later, Specialty filed a motion for leave to add
a party and amend the complaint. Specialty sought to add
intervenor Jacobsen as an additional plaintiff and add claims
of negligent misrepresentation and gender discrimination
under RCW 49.60.030. The trial court granted the motion over
the County's objection.
County filed a motion for summary judgment, seeking dismissal
of all claims. The trial court granted partial summary
judgment and dismissed the discrimination and negligent
misrepresentation claims but denied the motion with regard to
the contract claim. Specialty filed a motion for
reconsideration of the trial court's summary judgment
order, which the trial court denied.
the summary judgment order, Specialty filed a motion for
leave to file a second amended complaint. Specialty sought to
modify the prayer for relief on the contract claim to add
monetary damages in an amount to be proved at trial. The
County objected to the motion, arguing that the amended
complaint was futile because Washington law provided that an
injunction was the exclusive remedy for the claim. The trial
court agreed and denied the motion. The County conceded the
breach of contract issue, stipulated that Specialty could
complete the project under the terms of the written contract
that Specialty signed on August 16, 2013 (without a bond),
and moved to compel specific performance or, alternatively,
dismiss the case as moot. Specialty objected, but the trial
court issued an order granting the County's motion. In
that order, the trial court issued a deadline for Specialty
to declare whether it intended to complete the project. The
trial court also found that Specialty would be entitled to
recover reasonable increased costs for the project because of
the County's delays. The County was ordered to allow
Specialty to perform the contract without a bond.
Specialty filed a timely notice declaring its intent to
not perform the contract. Its stated reasons
included that the cost of the project had increased, the
condition of the parking lot had deteriorated, the law
governing the project had changed, and it was unclear whether
Specialty would be able to recover the costs associated with
the project. The County argued that since Specialty chose not
to avail itself of the only remaining relief, no justiciable
controversy remained and the case should be dismissed. The
trial court agreed and dismissed the case as moot.
appealed, and the Court of Appeals affirmed. Specialty
Asphalt & Constr., LLC v. Lincoln County, No.
34480-1-III, slip op. at 1 (Wash.Ct.App. Aug. 29, 2017)
Specialty petitioned for review, which we granted.
Whether summary judgment dismissal of the gender
discrimination claim was proper.
Whether summary judgment dismissal of the negligent
misrepresentation claim was proper.
Whether denial of the motion to amend and dismissal of the
contract claim was proper.
Summary judgment dismissal of the gender discrimination claim
Standard of review
review the trial court's grant of summary judgment de
novo. Camicia v. Howards. Wright Constr. Co., 179
Wn.2d 684, 693, 317 P.3d 987 (2014). Summary judgment is
proper only when there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter
of law. CR 56(c). We consider all facts and reasonable
inferences in the light most favorable to the nonmoving
party, but the nonmoving party may not rely on speculation.
Seven Gables Corp. v. MGM/UA Entm't Co., 106
Wn.2d 1, 13, 721 P.2d 1 (1986); Hiatt v. Walker Chevrolet
Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992) (to overcome
summary judgment, "the employee must do more than
express an opinion or make conclusory statements").
"When the record contains reasonable but competing
inferences of both discrimination and nondiscrimination, the
trier of fact must determine the true motivation."
Scrivener v. Clark Coll., 181 Wn.2d 439, 445, 334
P.3d 541 (2014) (citing Rice v. Offshore Sys., Inc.,
167 Wn.App. 77, 90, 272 P.3d 865 (2012)). "However,
'when reasonable minds could reach but one conclusion,
questions of fact may be determined as a matter of
law.'" Ruff v. County of King, 125 Wn.2d
697, 703-04, 887 P.2d 886 (1995) (quoting Hartley v.
State, 103 Wn.2d 768, 775, 698 P.2d 77 (1985)).
We reverse the Court of Appeals because there are
competing inferences of discrimination and
brought a claim of gender discrimination under the Washington
Law Against Discrimination, RCW 49.60.030. The purpose of
the law is to deter and to eradicate discrimination in
Washington. Mackay v. Acorn Custom Cabinetry, Inc.,
127 Wn.2d 302, 309-10, 898 P.2d 284 (1995). "[A]n
independent contractor may bring an action for discrimination
in the making or performance of [a] contract for personal
services." Marquis v. City of Spokane, 130
Wn.2d 97, 100-01, 922 P.2d 43 (1996). To establish
discriminatory action, "plaintiffs may rely on
circumstantial, indirect, and inferential evidence."
Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas
County, 189 Wn.2d 516, 526, 404 P.3d 464 (2017)
(assessing a claim under RCW 49.60.180). Specialty's
evidence should be "taken together" when
considering whether there are "'reasonable but
competing inferences of both discrimination and
nondiscrimination.'" Id. at 535-36
(emphasis omitted) (quoting Hill v. BCTI Income
Fund-I, 144 Wn.2d 172, 186, 23 P.3d 440 (2001)).
was required to show that she was somehow treated
differently from similarly situated members of the
opposite sex because of her gender. The M ...