Grimwood v. University of Puget Sound, Inc.

• Decision Date: 14 April 1988
• Docket Number: No. 54125-6,54125-6
• Citation: 753 P.2d 517,110 Wn.2d 355
• Parties: , 57 Fair Empl.Prac.Cas. (BNA) 675, 48 Empl. Prac. Dec. P 38,540, 46 Ed. Law Rep. 774, 7 IER Cases 1723 Richard GRIMWOOD, Petitioner, v. UNIVERSITY OF PUGET SOUND, INC., Respondent.
• Court: Washington Supreme Court

Page 355

110 Wn.2d 355

753 P.2d 517, 57 Fair Empl.Prac.Cas. (BNA) 675,

48 Empl. Prac. Dec. P 38,540, 46 Ed. Law Rep. 774,

7 IER Cases 1723

Richard GRIMWOOD, Petitioner, v. UNIVERSITY OF PUGET SOUND, INC., Respondent.

No. 54125-6.

Supreme Court of Washington En Banc.

April 14, 1988.

Steven L. Larson, Tacoma, for petitioner.

Eisenhower, Carlson, Newlands, Reha, Henriot & Quinn, James F. Henriot, James M. Hushagen, Tacoma, for respondent.

BRACHTENBACH, Justice.

This case involves an action for damages resulting from plaintiff's termination from employment by defendant University of Puget Sound, Inc. (UPS). Plaintiff alleged: (1) age discrimination in violation of RCW 49.60.180(2); (2) breach of contract of employment; and (3) wrongful discharge. The trial court granted defendant's motion for summary judgment. The Court of Appeals affirmed by an unpublished opinion. Grimwood v. University of Puget Sound, Inc., noted at 48 Wash.App. 1012 (1987). We affirm.

Plaintiff was first employed by defendant UPS in 1968; ultimately he became Director of Food Services. In March 1984, at age 61, UPS discharged him. Plaintiff challenged his termination through UPS personnel administrative procedures. He contended he was discharged without just cause and as a result of age discrimination. The appeal committee unanimously found no merit in either claim, affirmatively finding substandard job performance. Plaintiff subsequently filed suit in superior court.

UPS had given defendant a 2-page termination notice. It detailed plaintiff's efforts to terminate a special meal program which he had agreed to institute. Plaintiff's actions were described as a serious error causing negative student reaction, done without proper consultation with plaintiff's superior. The notice described the incident as a serious form of noncooperation. It referred to a September 1983 memorandum sent to plaintiff, which had also warned him of noncooperative behavior and other job performance deficiencies.

That September 1983 memorandum was entitled "Need to Improve Job Performance." The memorandum referred to: (1) plaintiff's failure to notify and explain to an employee a change in her work schedule; (2) plaintiff's failure to complete seven probationary employees' performance review forms (a similar failure had been set forth in writing 5 months earlier); and (3) six separate incidents in which employees under plaintiff's supervision had raised personnel problems, but refused to approach plaintiff for fear of retaliation or "gruff, short and negative responses." Those employees had abandoned their complaints and asked for anonymity. The memorandum concluded:

You have been warned repeatedly about your substandard performance in personnel management and about the unacceptability of noncooperative behavior.

I consider repeated instances of ineffective communication with employees, failure to complete probationary reviews and annual performance appraisals in a timely fashion, as well as repeated complaints about your uncooperative behavior or attitude to be serious. Further substandard performance in any of these areas will be cause to dismiss you from employment with the University. As you know, I am available to assist you in identifying the kind of behavior I expect of the Food Service Director if that is not clear to you. I will be available to discuss this memorandum with you at your convenience.

Please feel free to share your comments with me in person or in writing. Sign the enclosed copy of this memorandum and return it to me.

Clerk's Papers, at 104-05.

This memorandum had been preceded by a July 1983 supervisor's memorandum to plaintiff entitled "Cooperation." Before describing in detail a specific incident, it stated: "I have discussed your need to be cooperative at all times with students, faculty, and staff. I have cited examples of uncooperative behavior of yours in your appraisals." Clerk's Papers, at 100. These memoranda were made part of defendant's affidavit in support of defendant's summary judgment motion. In addition, defendant set forth relevant portions of plaintiff's deposition, described hereafter.

Plaintiff's counter affidavit did not dispute the factual contents of the defendant's affidavit or the deposition. Instead, plaintiff attached numerous letters of praise from users of food services, a copy of his June 1983 performance appraisal and a copy of portions of UPS's personnel manual. Referring to the memoranda and incidents described therein he stated: "Those incidents are nothing but pretexts." Clerk's Papers, at 121. One incident he described as "much ado about nothing"; another as "equally petty"; that another "exaggerates a minor misunderstanding" concluding that "[a] phone call to me would have solved the problem. Instead [the supervisor] blew the matter out of all proportion in an attempt to manufacture grounds for terminating my employment." Clerk's Papers, at 122. Plaintiff's affidavit further stated that "U.P.S. had no valid reason for being dissatisfied with my job performance," Clerk's Papers, at 120, "I was not 'uncooperative' and my job performance was not 'substandard,' " Clerk's Papers, at 121.

I. Standard of Review

Because plaintiff challenges the trial court's grant of summary judgment in defendant's favor, we must measure the evidence which plaintiff contends raises a genuine issue of material fact for trial.

CR 56(e) is explicit in its requirements which serve the ultimate purpose of a summary judgment motion. Affidavits must (1) be made on personal knowledge, (2) shall set forth such facts as would be admissible in evidence, and (3) shall show affirmatively that the affiant is competent to testify to the matters stated therein. Further,

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

CR 56(e).

It is apparent that the emphasis is upon facts to which the affiant could testify from personal knowledge and which would be admissible in evidence. Thus, there is a dual inquiry as to whether an affidavit sets forth "material facts creating a genuine issue for trial": does the affidavit state material facts, and, if so, would those facts be admissible in evidence at trial? If the contents of an affidavit do not satisfy both standards, the affidavit fails to raise a genuine issue for trial, and summary judgment is appropriate.

A fact is an event, an occurrence, or something that exists in reality. Webster's Third New Int'l Dictionary 813 (1976). It is what took place, an act, an incident, a reality as distinguished from supposition or opinion. 35 C.J.S. Fact 489 (1960). The "facts" required by CR 56(e) to defeat a summary judgment motion are evidentiary in nature. Ultimate facts or conclusions of fact are insufficient. See Hatch v. Bush, 215 Cal.App.2d 692, 30 Cal.Rptr. 397 (1963). Likewise, conclusory statements of fact will not suffice. American Linen Supply Co. v. Nursing Home Bldg. Corp., 15 Wash.App. 757, 767, 551 P.2d 1038 (1976).

Here, defendant's affidavit sets forth facts leading to plaintiff's termination. The memoranda attached to the affidavits set forth specific events, occurrences, things that were claimed to exist in reality. They stated that plaintiff did this or did not do that. On the other hand, plaintiff's affidavit in opposition presented only his conclusions and opinions as to the significance of the facts set forth in defendant's affidavit, e.g., that was "petty," this was a "pretext," that was "an exaggeration," or a fact set forth was "much ado about nothing." It is apparent that these phrases do not describe an event, an occurrence, or that which took place.

Equally deficient are plaintiff's statements in his affidavit that he was not uncooperative, and that his job performance was not substandard. These are conclusions. As such, they do not counter defendant's statements of noncooperation based upon specific incidents. It would be different if plaintiff had claimed the incidents did not occur; for example, had he said that he had, in fact, completed all employee evaluation forms when defendant said he did not, an issue of fact would have existed. To describe the incident instead as "much ado about nothing" may express his sincere belief and conclusions as to the occurrences at issue, but does not set forth "facts." An analogy is found in Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir.1980), an age discrimination case in which the employee testified in conclusory form as to his competence. The court said: "[the employee's] perception of himself ... is not relevant. It is the perception of the decision maker which is relevant."

The lack of any factual basis for plaintiff's claim of age discrimination here is conclusively demonstrated by plaintiff's own deposition testimony Q. ... You have alleged in this lawsuit that you were discharged because of advancing age and I would ask you, Mr. Grimwood: What is the basis for that claim?

A. Well, because I don't feel I was given sufficiently good reason for my termination so I feel it has to be fundamentally another reason and that's all I can come up with.

* * *

Q. But as far as any specific facts which would support an age discrimination claim, it is your belief that because you feel that the reasons for your termination are not good, in your opinion, that it has to be another reason and that reason must be age; is that what you're saying?

A. That's what I'm saying.

Clerk's Papers, at 94-95.

An almost factually identical case is Simmons v. McGuffey Nursing Home, Inc., 619 F.2d 369 (5th Cir.1980). There, plaintiff stated in his deposition that age must have been the reason...