Wash. Court of Appeals published opinion — 726668.pdf

Finally, as with his disparate treatment claim, Marin failed to show any

evidence of pretext for retaliation. He again points to the TLC he received on B

Crew. But as discussed above, the record does not show that the TLC was an

adverse employment action or "adverse compared to other use of 'TLC notes to

36 Boyd, 187 Wn. App. at 18.
37 Boyd, 187 Wn. App. at 18.
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No. 72666-8-1/18

employees" in similar situations. The TLC does not support Marin's pretext

argument.

Thus, Marin failed to satisfy his burden to show an adverse employment

action, causation, and pretext to support either his discrimination or retaliation

theory. The trial court did not err in dismissing his disparate treatment claim on

summary judgment.

Evidentiary Rulings

The trial court ruled that Marin could not offer evidence that any coworker

retaliated against him without first laying the foundation that the coworker was

aware of Marin's discrimination complaint. Marin's coworkers needed this

knowledge for their acts to be retaliatory under WLAD.38

Marin makes one challenge to this ruling: it restricted him to using direct

and not circumstantial evidence that the alleged retaliator knew he had made a

protected complaint. But the trial court's order did no such thing.39 The order

does not impose this restriction. Nothing in the record shows that the trial court

would exclude circumstantial evidence of a coworker's knowledge.

38 Currier. 182 Wn. App. at 746-47.
39 The order required Marin to "lay[ ] an adequate foundation . . . showing
that the accused coworker was aware that [Marin] had made a complaint about
discrimination."
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