Wash. Court of Appeals published opinion — 726668.pdf

error. "Similarly situated employees must have the same supervisor, be subject

to the same standards, and have engaged in the same conduct."23 Even if Marin

had shown Burton's error to be analogous to his own, Burton is still not a valid

comparator because he worked under a different supervisor.24 And the record

does not show that the County treated Marin differently than Burton, who also

22 See Donahue v. Cent. Wash. Univ.. 140 Wn. App. 17, 26, 163 P.3d 801
(2007) (holding that professor did not suffer adverse action where he "did not
lose tenure, he was not demoted, and he did not receive a reduction in pay").
23 Kirbv. 124 Wn. App. at 475 n.16; see also Clark v. Runvon. 218 F.3d
915, 918 (8th Cir. 2000).
24 See Xuan Huvnh v. U.S. Dep't of Transp.. 794 F.3d 952, 960 (8th Cir.
2015); Rodriguez-Cuervos v. Wal-Mart Stores. Inc.. 181 F.3d 15, 21 (1st Cir.
1999) (both finding employees under different supervisors were not similarly
situated).
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No. 72666-8-1 /14

received a TLC—albeit an oral one—after his error. A reasonable employee

would not interpret Marin's TLC as setting "impossible or terrifying unique

performance standards" or threatening termination.

Even if Marin had made a prima facie showing of disparate treatment, he

failed to show the County's reasons are pretextual. Marin does not dispute that

the County showed legitimate reasons for each action. In arguing those reasons

are pretextual, Marin lists treatment both during and before his time on D Crew.

But he does not support that list with specific citations to the record or explain

how it shows pretext.25 No reasonable juror could find from the evidence