Wash. Court of Appeals published opinion — D2 52293-4-II Published Opinion.pdf

Citation: Wash. Court of Appeals published opinion — D2 52293-4-II Published Opinion.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/D2%2052293-4-II%20Published%20Opinion.pdf ↗

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against because of her disabilities. Complaining about discriminatory conduct is statutorily

protected activity. RCW 49.60.210; see Estevez v. Faculty Club of Univ. of Washington, 129

Wn. App. 774, 799, 120 P.3d 579 (2005).2

Home Depot’s argument is that we should disregard Mackey’s statement in her

declaration. It claims that Mackey’s statement is not sufficient to show that she actually

complained before her termination because it was self-serving, unsubstantiated, and could not be

corroborated. However, on summary judgment a nonmoving party’s declaration must be taken

as true and can create a genuine issue of material fact even if it is “self-serving.” Reagan v.

Newton, 7 Wn. App. 2d 781, 806, 436 P.3d 411, review denied, 193 Wn.2d 1030 (2019).3

2
It is unclear whether Mackey’s complaint related to her disabilities. Mackey’s report of the
incident does not show that Krall verbally attacked her because of her disabilities, only that her
disabilities made it difficult to respond. However, Home Depot does not argue otherwise, so we
assume without deciding that Mackey’s report of her incident with Krall could be interpreted for
summary judgment purposes as a complaint that she was being discriminated against because of
her disabilities.
3
Home Depot also argues that Mackey’s declaration that she complained the day after the
incident with Krall conflicts with her deposition testimony. A plaintiff cannot contradict
unambiguous deposition testimony with a subsequent declaration. Robinson v. Avis Rent A Car
Sys., Inc., 106 Wn. App. 104, 121, 22 P.3d 818 (2001). But in the portion of the deposition to
which Home Depot cites, Mackey did not address the complaint to Tilton.