Opinion
No. 56500-1-I.
July 31, 2006.
Appeal from a judgment of the Superior Court for King County, No. 03-2-12020-1, Richard A. Jones, J., entered May 6, 2005.
Counsel for Appellant(s), John Patrick Sheridan, Law Office of John P. Sheridan, P.S., 705 2nd Ave Ste 1200, Seattle, WA 98104-1798.
Gregory Alan Wolk, Law Office of John P. Sheridan, P.S., 705 2nd Ave Ste 1200, Seattle, WA 98104-1798.
Counsel for Respondent(s), Erin L. Overbey, Seattle City Attorneys Office, PO Box 94769, Seattle, WA 98124-4769.
Frederick E. Wollett, Seattle City Attorneys Office, PO Box 94769, Seattle, WA 98124-4769.
Affirmed by unpublished opinion per Ellington, J., concurred in by Coleman and Dwyer, JJ.
Robert Cannon, an African-American employee of Seattle City Light, appeals dismissal of his claims of race discrimination and retaliation. Because Cannon did not produce evidence of intentional discrimination, disparate treatment, or retaliatory conduct, we affirm.
BACKGROUND
Robert Cannon has worked in Seattle City Light's Network Services unit since about 1986. Cannon's career advancement at City Light has included company benchmarks as well as personal accomplishment. In 1991, he became the first African-American cable splicer apprentice at the company. In 1995, he became the first African-American cable splicer journeyworker. In 1998, he became the company's first African-American cable splicer crew chief.
In 1999, in response to increased demands for electric services in Seattle's downtown core during the dot-com boom, City Light instituted a swing shift, working from 5 p.m. to 1 a.m. Although the swing shift could not perform work that would violate nighttime noise ordinances, the new shift could work in city streets without interruption by traffic, which City Light saw as an opportunity to meet customer demand more quickly.
City Light administrators anticipated the new shift would be an unpopular schedule. To attract workers to the swing shift, City Light offered them a 10 percent pay increase and corresponding 10 percent acceleration to retirement, as well as a paid meal break. An agreement with the employees' union, Local 77 of the International Brotherhood of Electrical Workers, provided that positions not filled by volunteers would be filled by new hires. Because the union was concerned City Light might use the swing shift to eliminate overtime hours, the agreement guaranteed 27,000 hours of overtime for the two shifts (day and swing) combined. The agreement also contained a sunset clause providing that unless otherwise agreed, the swing shift would end when the current bargaining agreement expired.
The initial contract was set to expire in January 2002. It appears that the swing shift agreement was renewed until January 2004, when the contract was again set to expire. In January 2004, the swing shift was eliminated and employees were reassigned to the day shift.
The swing shift was implemented in 1999 and involved, on average, 19 employees, or approximately 25 percent of City Light's total Network Services workforce. The swing shift was racially diverse, and had a higher proportion of racial minorities as well more as female employees than the day shift. The shift continued until 2004.
The exact reasons for the high proportion of minority workers on the swing shift is not clear, but may be partially attributable to the fact that it was staffed largely with new employees, who tended to be more racially diverse than longtime employees.
Cannon volunteered for the swing shift, where he consistently worked overtime. In 2000, Cannon worked 1,014 hours of overtime, more than any other cable-splicer at City Light. In 2002, the opportunities for overtime declined. Cannon suggested that the swing shift was not receiving its proportional share of overtime compared to the day shift. City Light management assured Cannon and other swing shift employees that equitable allocation of overtime between the shifts was City Light's goal. It is unclear whether Cannon or any other employee communicated a concern that because swing shift has a higher proportion of minority employees, the unequal distribution of overtime was having a negative impact based on race. In July 2003, Cannon filed an equal employment opportunity complaint. He filed an administrative claim in September 2003, and eventually filed this lawsuit alleging violations of the Washington Law Against Discrimination, chapter 49.60 RCW.
Cannon contends the loss of overtime opportunities resulted from a 'policy and practice of . . . allowing Caucasian supervisors and managers to allocate promotions and other benefits and opportunities based on their subjective and discriminatory preferences,' namely, racial bias. Clerk's Papers at 5. He also alleges that the utility facilitates discrimination by using its human resources department and its equal opportunity office to conceal race discrimination. Cannon further claims City Light retaliated against him for reporting discrimination by continuing to deny him overtime opportunities and by canceling the swing shift.
The trial court dismissed all of Cannon's claims on summary judgment, and denied Cannon's CR 60 motion for reconsideration.
DISCUSSION
Burden Shifting Analysis. Under the Washington Law Against Discrimination, "it is an unfair practice for any employer . . . to discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability." RCW 49.60.180(3). The statute also prohibits retaliation against employees for asserting rights under the statute: 'It is an unfair practice for any employer . . . to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.' RCW 49.60.210(1). Violations of these statutes are grounds for a civil action for damages and other relief. RCW 49.60.030(2).
Washington courts use the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 23 P.3d 440 (2001). First, the plaintiff bears the burden of setting out a prima facie case of discrimination. Id. at 181. Such a showing creates a rebuttable presumption that the employee was discriminated against, and shifts the evidentiary burden to the defendant to produce admissible evidence of a legitimate, nondiscriminatory explanation for the adverse employment action sufficient to raise a genuine issue of material fact as to whether the defendant discriminated against the plaintiff. Id. If the defendant meets this burden, the presumption is rebutted, and the burden of proof shifts back to the plaintiff, who must then show the defendant's stated reason for the adverse action was in fact pretext. Id. at 182. If the plaintiff fails to show pretext, the defendant is entitled to judgment as a matter of law. Id.
The usual standard of review on summary judgment applies.
This court reviews a grant of summary judgment de novo, engaging in the same inquiry as the trial court and viewing the facts and the reasonable inferences from those facts in the light most favorable to the nonmoving party. Overton v. Consol. Ins. Co., 145 Wn.2d 417, 429, 38 P.3d 322 (2002). Summary judgment is appropriate where 'there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.' CR 56(c).
Disparate Treatment. To establish a prima facie case of discrimination based on disparate treatment, an employee must show that (1) he belongs to a protected class; (2) he was qualified to receive a benefit in the terms or conditions of his employment; (3) he was denied that benefit; and (4) a similarly situated employee outside the protected class, or 'comparator,' did receive the benefit. Id. at 181; Washington v. Boeing Co., 105 Wn. App. 1, 13, 19 P.3d 1041 (2000). An unprotected employee is similarly situated if the plaintiff and the comparator were doing substantially the same work. Id.
Cannon easily satisfies the first two criteria. As an African-American, Cannon belongs to a protected class. As a cable splicer crew chief for more than five years, he is qualified for that position and to receive the benefit of overtime work. But there is no evidence that overtime opportunities for which Cannon was better qualified were instead offered to Caucasian cable splicer crew chiefs.
Between 2000 and 2004, Cannon was one of the utility's top three employees in his job category in total number of overtime hours. His claim must therefore be either that Caucasians worked (or were offered) overtime for which he was more qualified, or that City Light's procedures for assigning overtime opportunities were calculated to allocate fewer opportunities to him because of his race.
Because all cable splicer crew chiefs have the same skills, eligibility for a particular overtime assignment turns on City Light's policies and procedures for allocating overtime work. We therefore briefly review these policies and their history.
Policies and Procedures. All overtime is assigned to individual crew chiefs, who then typically complete the necessary crew with journeyworkers from their normal crew or, should they decline the overtime, with journeyworkers from other crews.
Cable splicer overtime generally arises in one of three ways, and assignment of the work to a particular crew varies within these three categories. First, scheduled overtime arises when supervisors can anticipate that a large job will require overtime hours, and as the term suggests, is planned and approved in advance. Scheduled overtime is more common on capital improvement projects, but can also arise in maintenance projects. Second, unscheduled overtime arises in unforeseen circumstances, such as an accelerated need for job completion or where delay would jeopardize network services or progress on other projects. Finally, stand alone overtime arises when a customer requests a short-term job. The most common examples of stand alone overtime are when a crew is needed to turn power on or off at a construction site, or when a request for cable location is made before digging begins at a construction site.
Before the institution of the swing shift, all overtime jobs were allocated using a callout list, which is a mechanism for ensuring equal opportunities for overtime. The list records the number of overtime hours offered to and worked by individual employees. The list is used to determine which crew chief should be offered the overtime. The crew chiefs with the least number of hours recorded on the callout list are first in line for the next assignment. Crew chiefs were instructed to staff overtime assignments from their own crews first, using the callout list to determine priority, and then to fill vacancies from other crews, also using the callout list. Until 1997, the callout list was refreshed or zeroed out every year. In 1997, City Light and the union agreed the list would be refreshed every three years, so there was a zero-out in 2000, and another scheduled for 2003. In 2002, however, it was decided by a joint union-management committee that rather than zero-out the list completely, the recorded number of hours on the callout list would be reduced by half.
Cannon portrays a different version of this history, but the record demonstrates that Cannon was not involved in the decision-making and lacks personal knowledge to describe these events.
On implementation of the swing shift, management stated its intention that the swing shift would have the same opportunities to work overtime as the day shift, explaining that 'if 25% of the Network labor force were working a second [swing] shift, we would expect that about 25% of the overtime labor hours . . . would be available to the second shift.' Clerk's Papers at 231.
In a 2000 memo, management expressed the aspiration that '[t]he opportunity to work overtime should be afforded as equitably and fairly as possible between shifts,' but recognized that other considerations would sometimes apply: '[W]hile every reasonable effort should be made to ensure equitable opportunity to work overtime, there are other considerations in assigning overtime work, including experience and equipment needed for a specific job.' Clerk's Papers at 515. The memo directed crew chiefs to 'make every effort' to restrict scheduled overtime to employees on their own shift, but stated that unscheduled overtime would be offered 'regardless of shift assignment,' using the callout list. Id.
In practice, however, crew chiefs staffed these overtime jobs within each shift rather than by the callout list until August 2002, when Doug Smart became supervisor. He reemphasized that when a crew chief accepted stand-alone or unscheduled overtime but later decided not to work the job, the assigned crew chief should resort to the callout list regardless of shift assignment. Because of the past practice, Smart's enforcement of the procedure set forth in the 2000 memo was perceived as a change in the rules. This rule 'change' applied both to day and swing shifts.
Contentions. Cannon's many allegations of disparate treatment comprise five broad complaints: disproportionate overtime assignments between day and swing shifts, near-exclusive assignment of capital improvement projects with high overtime potential to the day shift, rule changes in overtime assignment procedures, elimination of the swing shift, and a pervasive discriminatory workplace. We address each allegation in turn.
Proportional Overtime Assignments Between Day and Swing Shifts. Cannon contends that despite promises overtime would be allocated equally between the two shifts, the day shift was assigned jobs involving scheduled overtime more frequently than the swing shift, and between 2000 and 2004, the swing shift worked an unequally low proportion of overtime compared to the day shift.
We need not address whether these contentions would create a question of fact as to disparate treatment because they are unsupported by the record. City Light made no promise that overtime assignments to each shift would be perfectly proportional. The expressed goal was to extend overtime opportunities 'as equitably and fairly as possible between shifts.' Clerk's Papers at 515. This is not a promise, and in the very same document, City Light noted that considerations other than equitable opportunity also factored into overtime assignments.
Further, Cannon relies upon a statistical analysis of the overtime allocation, but his statistics are unhelpful because they do not use proper comparators. Depending upon his argument, Cannon alternately advocates for a large group of comparators (the entire network unit, including cable splicer crew chiefs, journey workers, material suppliers, and locators) and a very small group of comparators (only cable splicer crew chiefs who aggressively pursued overtime as Cannon did).
But legally relevant comparators are those doing substantially similar work. This standard is not satisfied here by comparing Cannon to the entire employment unit, or by a subjective measure such as aggressive pursuit of a benefit. The proper comparators for Cannon's claims are, on an individual basis, all cable splicer crew chiefs, and as between the two shifts, all cable splicer employees.
Cannon's statistics purported to show that the swing shift represented 21 percent of unit employees, but received only 18 percent of overtime hours. But his statistics include day shift overtime for network locators, who perform different tasks from, and work independently of, cable splicers. Cannon is not trained to do locator work. Locators are therefore not proper comparators, and Cannon's proffered statistics were properly rejected by the trial court for that reason.
Comparing cable splicer crew chief overtime for swing and day shifts, and accounting for hours offered as well as those actually worked, demonstrates that day shift overtime opportunities were not disproportionate. Indeed, in many pay periods, the swing shift exceeded its proportional share of overtime.
Cannon raises no genuine issues of material fact as to overtime allocation between the shifts.
High-Overtime Capital Projects Assigned to Day Shift. Cannon next points to the allocation of capital improvement projects, which typically involve significant amounts of scheduled overtime. He disputes City Light's assertions that capital projects are suited almost exclusively to daytime hours because of the noise they generate, pointing out that capital improvement overtime work is done by day shift crews during swing shift hours. He also points to work on weekend days that could have been allocated to the swing shift. Finally, he cites to his own significant overtime work on a capital improvement project, the Battery Street tunnel, to prove that capital improvement work can be assigned to swing shift employees.
While the reasons capital improvement work was more frequently assigned to day shifts are disputed, the dispute is not material here. Absent racial motivation, City Light is entitled to manage its projects as it sees fit, and Cannon's evidence supports no inference of intent to discriminate in the allocation of overtime hours. The fact is that in the aggregate, swing shift crew chiefs received their share of overtime, and Cannon himself generally received the largest share. Further, Cannon worked significant overtime on the tunnel, a capital project. Cannon fails to meet his initial burden.
Moreover, even if Cannon had made his prima facie case, he has shown no pretext behind City Light's legitimate, nondiscriminatory explanations for assigning projects as it did. From the swing shift's inception, City Light understood that only 40 to 60 percent of Network Services' work was appropriate for that shift because of noise restrictions, meaning that 40 to 60 percent of the work was too loud. Weekend work is largely a continuation of weekday daytime projects, for which the utility prefers to use the same crew for the sake of continuity. A multitude of factors are considered in assigning overtime jobs to a particular shift, and noise level is not always determinative. For example, Cannon's assignment to the Battery Street tunnel job resulted from his particular expertise on that project. Cannon shows no reason these explanations should be disbelieved, and summary judgment was appropriate.
Overtime Assignment Procedure Rule Changes. Cannon also contends City Light changed its procedures for allocating overtime opportunities in order to prevent him in particular from working overtime. This claim too is unsupported by the record.
Cannon asserts two rule changes targeted him personally: the rule preventing crew chiefs from individually reassigning unscheduled overtime within their shifts, and the decision to halve the hours recorded on the callout list rather than zero them out. The practical effect of the first change (and its enforcement by supervisor Smart) may have been to remove from the swing shift overtime jobs that no crew chief except Cannon would have accepted. But the rule affected all crew chiefs, not just the swing shift. Cannon's allegation of disparate treatment therefore fails.
As to the demise of the zero-out rule, he cites the timing of the change, which came when he had the highest numbers on the callout list, so that the decision to halve the hours instead of zeroing them out left him with a longer wait than anyone else for the next assignment. But the procedure was negotiated between union and management, and the change did not result in allocation of overtime to employees less entitled than Cannon to work those hours. The policy was intended to, and did, increase the number of employees sharing in limited overtime opportunities. There is no evidence the policies were directed at Cannon in particular, or that the decisions were made on the basis of race. '[C]ourts must not be used as a forum for appealing lawful employment decisions simply because employees disagree with them.' Hill, 144 Wn.2d at 190 n. 14.
Because overtime opportunities for crew members usually arise when their crew chief accepts an overtime assignment, crew members are negatively impacted when their chief takes an assignment for another crew chief. In that case the fill in chief uses the other chief's crew on the job, and moves higher on the callout list, becoming less likely to be offered overtime in the future. His own regular crew is therefore also less likely to have overtime hours. See Clerk's Papers at 191.
Eliminating the Swing Shift. Cannon also contends that City Light terminated the swing shift in order to injure him by removing his 10 percent pay premium and forcing him to compete for overtime with all the employees in the day shift. Of this intent, Cannon provides no evidence whatsoever. First, this decision was negotiated between the union and the utility, and Cannon presents no evidence suggesting the decision-makers singled him out in any way. Nor was he affected differently from other members of the swing shift. Further, City Light provided numerous justifications for the decision to terminate the shift, including lower service demands after the dot-com bust, the planned sunset of the shift, the need to reduce costs, and the desire to promote unity among employees.
Multiple and inconsistent reasons for an adverse employment action may support an inference that none of the reasons given is the real reason. Renz v. Spokane Eye Clinic, P.S., 114 Wn. App. 611, 623, 60 P.3d 106 (2002). But the several reasons given here are not in conflict. The record contains no evidence that the decision to cancel the shift was anything other than a legitimate business decision.
Institutionalized Discrimination. Cannon emphasizes his view that City Light is pervaded by discrimination, and that management is structured so as to prevent effective supervision and investigation of discrimination complaints. In this vein, he submits discovery materials, records of judgments, and opinions from previous cases finding City Light liable for racial discrimination in promotion, termination, and harassment. None of the previous cases involved similar circumstances, however, so they are irrelevant to our analysis. See Roberts v. Atlantic Richfield Co., 88 Wn.2d 887, 893-94, 568 P.2d 764 (1977) (evidence of discrimination claims filed by others properly excluded where those employees had no comparable positions to plaintiff, worked under different circumstances, or suffered different adverse employment actions.) Even if City Light has an imperfect record on equal employment issues, history is not a substitute for evidence on the specific allegations here.
Hostile Work Environment. Cannon contends that the cumulative effect of obstacles to career advancement, policy changes and/or irregular policy enforcement and denial of overtime opportunities was to create a hostile work environment for Cannon and other racial minority employees. In granting summary judgment dismissing this claim, the trial court found that Cannon failed to adequately plead the claim and failed to produce evidence to support it.
We agree with both rulings. The statement in Cannon's complaint that 'the facts set forth above state a claim against Seattle City Light for intentional discrimination against plaintiff in violation of the Washington Law Against Discrimination' was insufficient to provide the defendant and the court notice of a hostile work environment claim. See Chen v. State, 86 Wn. App. 183, 193-94, 937 P.2d 612 (1997). Because a new claim cannot be raised in the responsive brief to a motion for summary judgment, Cannon's hostile work environment claim was properly dismissed for failure of the pleadings. See White v. Kent Med. Ctr., Inc., 61 Wn. App. 163, 168-69, 810 P.2d 4 (1991).
Further, Cannon produced no evidence to support this claim. A prima facie case for a racially hostile work environment requires a showing of offensive and unwelcome conduct occurring because of race. Washington v. Boeing Co., 105 Wn. App. 1, 10, 12-13, 19 P.3d 1041 (2000). The conduct must be objectively offensive and must be sufficiently severe and pervasive as to alter the conditions of employment. Antonius v. King County, 153 Wn.2d 256, 261, 103 P.2d 729 (2004); Adams v. Able Bldg. Supply, Inc., 114 Wn. App. 291, 283, 57 P.3d 280 (2002). The plaintiff-employee's race must be the motivating factor for the discrimination so as to create a nexus between the specific harassing conduct and the plaintiff's race. Robel v. Roundup Corp., 148 Wn.2d 35, 46, 59 P.3d 611 (2002).
Cannon describes only two incidents of alleged harassment. Both are hearsay, and neither is severely offensive from an objective standpoint. First, Cannon points to supervisor Smart's comment, made in Cannon's presence to fellow crew chief Gordon Hamilton, that if Hamilton decided not to work an overtime shift, he had to use the formal callout list procedure to find a replacement. Cannon attaches inexplicable significance to this exchange. He contends Smart's statement was intended to humiliate him because it was common knowledge Cannon would replace Hamilton if the informal procedure of asking other crew chiefs within the swing shift prevailed. But even if the comment implicitly referred to Cannon, there is nothing suggesting it was motivated by Cannon's race. Instead, Cannon's high placement on the callout list and reputation for seeking overtime opportunities would explain any reference to him in that context. And even if there were some veiled reference to race, the comment cannot be described as objectively offensive.
Second, Cannon claims that fellow crew chief Kerry Placek told him on at least one occasion, '[y]ou're lucky you have a job,' a comment Cannon interpreted as 'an obvious reference to the phrase 'you're lucky to have a job, nigger' back in the civil rights days.' Clerk's Papers at 413. But other than the statement itself standing alone, Cannon presents no evidence that Placek meant what Cannon says he did. Nor does Cannon provide evidence explaining how a colleague's statements, never reported to management, would be attributable to City Light. See Estevez v. Faculty Club of the Univ. of Wash., 129 Wn. App. 774, 794-95, 120 P.3d 579 (2005). And again, the comment cannot be described as objectively offensive.
A third example of behavior Cannon perceived as a racially derogatory comment was day shift crew chief Arne Armfield's comment that he resented the swing shift for the 10 percent pay premium. Arnfield referred to the swing shift as 'you guys,' which Cannon interpreted as '[y]ou minorities and women,' because the swing shift was predominantly comprised of women and minority employees, though there were at least two or three Caucasian employees on the swing shift at the time of the comment. Clerk's Papers at 476.
Cannon's true claim rests on the obstacles he alleges in career advancement and overtime opportunities. He presents no evidence of obstacles to his career advancement quite the contrary and we have previously discussed the lack of any evidence of discrimination in overtime opportunities. In any event, such claims do not support a hostile work environment allegation. Retaliation. To establish a prima facie case of retaliatory conduct, a plaintiff must show that (1) he engaged in statutorily protected activity; (2) his employer took an adverse employment action against him; and (3) retaliation was a substantial factor behind the adverse employment action. Washington, 105 Wn. App. at 14. Cannon identifies two adverse employment actions taken against him after filing his equal employment opportunity grievance and this lawsuit: (1) supervisors continued to deny Cannon overtime opportunities, both by denying requests he submitted and by not offering him stand-alone jobs that came available, and (2) City Light cancelled the swing shift. These claims also fail for lack of any supporting evidence.
Overtime Opportunities Denied. Cannon argues City Light retaliated against him by denying him overtime opportunities after he filed his equal employment opportunity grievance in the summer of 2003. This theory suffers the same weakness as his underlying disparate treatment claim: Cannon often worked overtime, and City Light's policy for staffing overtime work was not discriminatory. There is no evidence that overtime assignments in the latter half of 2003 were made other than by following City Light's agreement with the union.
Cancellation of the Swing Shift. Cannon's theory that City Light cancelled the swing shift in retaliation against him also fails. First, Cannon provides no evidence that the adverse employment action was taken against him. Though it adversely affected him by removing the 10 percent pay differential, it affected all members of the swing shift identically, and did not single Cannon out.
Second, there is no evidence that retaliation was a motivating factor in the decision to end the swing shift. Rather, the decision was undertaken without consideration of Cannon's claim. Decision-makers including Superintendent Carrasco and Director of Finance Hardev Juj knew that Cannon's claim had been filed, but were unfamiliar with its subject matter.
Further, the swing shift was created as a temporary measure in 1999, with a negotiated union-management agreement that the shift would sunset unless both parties agreed to extend its term. The shift was renewed between 2002 and 2004, but was not renewed when the 2004 bargaining agreement expired. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 272, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001) ('Employers need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.'); Harris v. City of Seattle, 315 F. Supp. 2d 1112, 1125-26, (W.D. Wash. 2004) (workplace restructuring did not support retaliation claim where changes were considered five months before plaintiff filed lawsuit that allegedly triggered retaliation).
Because the Washington Law Against Discrimination closely parallels Title VII of the United States Civil Rights Act of 1964, Washington courts look to federal law when analyzing discrimination and retaliation claims under the state law. Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1065 (9th Cir. 2003); Selberg v. United Pac. Ins. Co., 45 Wn. App. 469, 472, 726 P.2d 468 (1986); Graves v. Dep't of Game, 76 Wn. App. 705, 712, 887 P.2d 424 (1994).
Cannon offers only conclusory statements to support his allegation that the shift was cancelled in order to deny him overtime opportunities and penalize him for bringing suit. It appears Cannon believes City Light would have cancelled the shift to injure him even had he not filed suit against the utility. His theory stretches credibility, and in any case, conclusory statements do not satisfy his factual burden. Las v. Yellow Front Stores, Inc., 66 Wn. App. 196, 198, 831 P.2d 744 (1992).
Summary judgment on the retaliation claim was appropriate because Cannon failed to meet a prima facie case of retaliatory employment action.
We affirm the trial court in all respects.
DWYER and COLEMAN, JJ., Concur.