Lisa Buhr v. Stewart Title Of Spokane, LLC ( 2013 )

FILED
August 1, 2013
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
LISABUHR, )
) No. 30164-8-III
Appellant, )
)
v. )
) OPINION PUBLISHED
STEWART TITLE OF SPOKANE, LLC; ) IN PART
and STEWART TITLE COt\.1PANY, )
)
Respondents. )
SIDDOWAY,1. - Lisa Buhr appeals the summary judgment dismissal of her
disability discrimination claims against Stewart Title Company (Stewart Co.), a 51
percent shareholder of her former employer, Stewart Title of Spokane LLC (Stewart
Spokane). She argues that the trial court abused its discretion in denying her motion to
extend the discovery cutoff and later erred in dismissing her claims. We find no error or
abuse of discretion and affirm.
FACTS AND PROCEDURAL BACKGROUND
In October 2009, Lisa Buhr sued her former employer, Stewart Spokane, and its
51 percent shareholder, Stewart Co., for disability discrimination and related claims. A
case schedule order was issued in early January 2010, setting January 10, 2011 as the
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discovery cutoff; March 14, 2011 as the trial date; and December 20, 2010 as the last date
for filing motions to change the trial date.
On December 22,2010, Ms. Buhr filed a motion to continue the trial date. She
attributed her tardiness in filing the motion to her understanding that the parties had
agreed to jointly request a continuance of all deadlines provided by the case schedule
order, only to learn on the afternoon of December 20 (when she had planned to file the
joint motion) that the defendants claimed a different understanding. Her motion was
clear that the defendants did not agree (or, from her perspective, no longer agreed) to the
continuance she was requesting.
On the day her motion was to be heard, however, the parties filed a joint motion to
continue the trial date. This second motion, signed by attorneys for all parties, stated that
it was based upon a concurrent declaration of Stewart Co.'s and Stewart Spokane's
lawyer. His declaration explained that by agreement of the parties, depositions for
material witnesses were set for agreed dates of February 23 and 24 and otherwise, "[p]er
[the parties'] agreement,"
the parties agreed to an August 2011 trial date, and the issuance of a new
Case Scheduling Order, provided, however, the following case scheduling
deadlines are closed: (a) Last Date for Joinder of Additional Parties,
Amendment of Claims or Defenses; (b) Plaintiff s Disclosure of Lay and
Expert Witnesses; (c) Defendant's Disclosure of Lay and Expert Witnesses;
(d) Disclosure of Plaintiff Rebuttal Witnesses; (e) Disclosure of Defendant
Rebuttal Witnesses; (f) Last Date for Filing: Motions to Change Trial Date,
Note for Arbitration, Jury Demand; and (g) Discovery Cutoff.
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Clerk's Papers (CP) at 83.
When the motion was heard, the lead lawyer appearing for Stewart Co. reiterated
that "we were not going to be extending deadlines to amend pleadings or add parties or
discovery probably, that we were just going to complete the discovery that had been
noted up until that point in time and then at that point the case would close for discovery
purposes and we would be dealing with mediating, dispositive motions, and then
ultimately trial." Report of Proceedings (RP) (Feb. 11,2011) at 5-6. When it was her
tum to speak, Ms. Buhr's lawyer said that she had a different understanding from her
negotiation with other lawyers for the defendants (the defendants were represented by
several local and out-of-state lawyers). She characterized the parties as having agreed to
extend the deadline for discovery to whatever date would be provided by a newly
generated case schedule order, explaining that "obviously one of the problems that we
have is the completion of discovery." Id. at 6.
The trial court construed the motion and supporting declaration to have the
meaning asserted by Stewart Co. Because Stewart Co.' s lead lawyer insisted that his
clients had not contemplated a continuance of the discovery cutoff and "[t]his is the first
I've actually heard of any indication that there may be additional depositions beyond the
initial ones scheduled .... I'm a little bit at a loss for how to respond," the trial court
granted the agreed continuance of the trial date with other deadlines remaining in place.
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Id. at 8. It stated that it would entertain a further motion from Ms. Buhr if, following the
February depositions, she still wished to extend the discovery cutoff.
Ms. Buhr filed a further motion to set a new discovery cutoff in March. Her
motion represented that the depositions conducted in February revealed a need for further
discovery, specifically identifying three subject matters: complete production of alarm
system records she had requested (Stewart Spokane's stated reason for discharging Ms.
Buhr was that she had falsified a time card, a conclusion it based on alarm system
records); evidence that Stewart Spokane had paid Ms. Buhr for the hours reported on her
time card on the day she was discharged; employee time cards for other employees
bearing on whether its stated policy for recording time was consistently followed; and a
CR 30(b)(6) deposition needed to determine "the liability and/or connection of Stewart
Title Guarantee Company, i.e., the national office as a proper party defendant in this
case." CP at 91-93. Stewart Co. and Stewart Spokane resisted the motion, claiming that
some of the discovery had.already been provided and that Ms. Buhr had previously
agreed to "close" most case schedule deadlines, including the discovery cutoff, in
exchange for its agreement to continue the trial date.
In the hearing on her motion, Ms. Buhr again contended that she had a different
understanding of the parties' agreement in February to "close" the discovery cutoff. She
maintained that "closing" the case schedule deadlines only meant that the deadlines
provided by a new case schedule order would be final. The court rejected her explanation
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of the motion and supporting declaration, stating, "it is clear that the cutoffs were
established." RP (Apr. 15,2011) at 33. Other than ordering Stewart Spokane to produce
employee identification information needed by Ms. Buhr to make use of alarm records
the company had earlier produced, the court denied Ms. Buhr's motion. Jd. at 35.
In June, Stewart Co. moved for summary judgment, arguing that it had no
employment relationship with Ms. Buhr and that she had alleged no legal basis on which
it could be held liable as Stewart Spokane's 51 percent parent. The trial court granted
summary judgment and dismissed her claims against Stewart Co. Its order granting
summary judgment included a finding that there was no just reason for delay and
expressly directed entry ofjudgment. Ms. Buhr timely appealed.
ANALYSIS
Ms. Buhr makes two assignments of error. The first is that the trial court abused
its discretion in "improperly terminating Ms. Buhr's entitlement to conduct meaningful
discovery seven months before the trial date." Br. of Appellant at i. The assignment
requires reframing. Ms. Buhr was free to conduct discovery through the January 10
discovery cutoff imposed by the original case schedule order; it was Ms. Buhr who
sought a reprieve from the cutoff, identifying her March motion, appropriately, as one to
"allow additional discovery and reset discovery cutoff." CP at 90 (emphasis added)
(boldface and capitalization omitted). We analyze her first assignment of error as
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asserting an abuse of discretion by the trial court in refusing to extend the discovery
cutoff.
The second assignment of error is that the trial court erred in dismissing her claims
against Stewart Co.
We address the assignments of error in tum.
1
As a threshold matter, Stewart Co. argues that Ms. Buhr failed to appeal the trial
court's denial of her March motion requesting an extension of time for discovery and we
therefore should not consider it. But we will review a trial court order or ruling not
designated in the notice of appeal, including an appealable order, if (1) the order or ruling
prejudicially affects the decision designated in the notice and (2) the order is entered, or
the ruling is made, before the appellate court accepts review. RAP 2.4(b). Ms. Buhr
argues that the court's refusal to extend discovery prejudicially affected its summary
judgment decision. She may challenge the refusal to extend discovery as a basis for
challenging dismissal of her claims against Stewart Co.
A second threshold argument raised by Stewart Co. is that when a party needs
additional discovery to respond to a motion for summary judgment, the only proper way
to request that evidence is through a motion complying with CR 56(f). Here, though, the
trial court had already denied Ms. Buhr's request for any further discovery by the time
Stewart Co.'s motion for summary judgment was filed. While CR 56(f) ordinarily
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prescribes the method and standard for continuing a summary judgment motion for
further discovery, Ms. Buhr reasonably concluded that in this case it was likely pointless
for her to seek relief under CR 56(f); filing such a motion might have subjected her to a
finding of contempt. It is sufficient for her to challenge the order refusing to extend the
discovery cutoff.
We tum to the merits of Ms. Buhr's argument and the basis for and appropriate
standard for extending a discovery deadline. CR 26(f) provides that at any time after
commencement of an action the court may direct the parties to appear for a conference on
discovery. The court may combine a court-convened conference on discovery with a
pretrial conference authorized by CR 16. CR 26(f). Following such a conference, the
rule contemplates a court order establishing a plan and schedule for discovery. A
schedule for discovery may be altered or amended "whenever justice so requires." CR
26(f).
Local rules of the Spokane County Superior Court provide for a status conference
at a time set by the original case assignment notice, which attorneys of record and any
pro se parties must attend. LAR 0.4.1 (d). A case schedule order is issued at the status
conference to "set the time period between filing and trial and the scheduled events and
deadlines for that type of case, as determined to be appropriate by the assigned court
department, after consultation with counsel." Jd. The court's standard case schedule
order provides, "IT IS ORDERED that all parties comply with the foregoing schedule
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pursuant to Local Rules 0.4.1 and 16.", See CP at 2014. Among the deadlines addressed
by the court's case schedule order for civil cases is the discovery cutoff. Noncompliance
with the case schedule order may be sanctioned by the court on its own initiative or on
the motion of an affected party. LAR 0.4.1 (g)(1), (2).
Ms. Buhr argues that the standard by which the trial court should have considered
her request to extend discovery-and by which we should review its refusal-is dictated
by cases addressing a plaintiffs "right of access to the courts ... includ[ing] the right of
discovery authorized by the civil rules, subject to the limitations contained therein," John
Doe v. Puget Sound Blood Ctr., 117 Wash. 2d 772, 780, 819 P.2d 370 (1991), or cases
limiting the trial court's discretion to impose harsh remedies, such as dismissing claims
or excluding testimony, in order to remedy a discovery violation. Blair v. TA-Seattle E.
No. 176, 171 Wash. 2d 342, 348, 254 P.3d 797 (2011); Burnet v. Spokane Ambulance, 131
Wn.2d 484,933 P.2d 1036 (1997). Neither line of cases is apposite.
The "right of discovery ... subject to the limitations [of the civil rules]" is not at
Issue. The case schedule order afforded Ms. Buhr a full year to conduct discovery-and
even it was filed three months after she had commenced her action. The trial court never
limited her right to engage in discovery, it simply did not extend it.
This is also not a case like Blair or Burnet, where a plaintiff has identified material
witnesses and is prepared to present their testimony at trial, thereby requiring the court to
weigh whether a discovery violation warrants the harsh remedy of depriving the jury of
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material evidence. Ms. Buhr only hoped that further discovery would produce material
evidence supporting her claims.
This is more like cases in which a party requests a continuance of the trial date due
to a claimed inability to prepare for trial. Whether a motion for such a continuance
should be granted or denied is a matter of discretion with the trial court, reviewable on
appeal for manifest abuse of discretion. Trummel v. Mitchell, 156 Wash. 2d 653, 131 P.3d
305 (2006). In exercising its discretion,
a court may properly consider the necessity of reasonably prompt
disposition of the litigation; the needs of the moving party; the possible
prejudice to the adverse party; the prior history of the litigation, including
prior continuances granted the moving party; any conditions imposed in the
continuances previously granted; and any other matters that have a material
bearing upon the exercise of the discretion vested in the court.
Jd. at 670-71. In the context of a request to continue the discovery cutoff, a court may
also properly consider the purpose of a discovery cutoff date, which is "to protect the
parties from a continuing burden of producing evidence and to assure them adequate time
to prepare immediately before trial." Whittaker Corp. v. Execuair Corp., 736 F .2d 1341,
1347 (9th Cir. 1984). A court abuses its discretion when its decision is based upon a
ground, or to an extent, clearly untenable or manifestly unreasonable. Trummel, 156
Wn.2d at 671.
Here, the trial court considered the fact that Stewart Co. agreed to a five-month
continuance of trial based on Ms. Buhr's acceptance of other terms recounted in its
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lawyer's February declaration, including that "the following case scheduling deadlines
are closed: ... (g) Discovery Cutoff." While Ms. Buhr claims to have had a different
understanding of what "closed" meant, the trial court was in a better position than we to
decide between the parties' conflicting characterizations. We will not second-guess its
reading of the joint motion to continue trial and its supporting declaration, which is
reasonable. The trial court was aware that Ms. Buhr and Stewart Spokane had been
through administrative proceedings before a lawsuit was filed and that Ms. Buhr obtained
some relevant Stewart Spokane documents through those proceedings. Finally, while
Ms. Buhr claimed that discovery was made difficult by several substitutions of counsel
for the defendants and the demands of her own lawyer's schedule, she did not provide
examples of diligence in requesting earlier discovery that was ignored or frustrated by the
defendants. In identifying the additional discovery that she viewed as necessary, only her
request for a CR 30(b)(6) deposition was arguably relevant to the dismissal of Stewart
Co. that is the subject of this appeal, and even that request did not relate to Stewart Co.
but was with a view to asserting a new claim against a different affiliate, Stewart Title
Guaranty.
Ms. Buhr has not demonstrated a manifest abuse of discretion by the trial court in
refusing to extend discovery.
F or reasons discussed above and in the unpublished portion of this decision,
dismissal of Ms. Buhr's claims against Stewart Co. is affirmed.
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The remainder of this opinion has no precedentia1 value. Therefore, it will be filed
for public record in accordance with the rules governing unpublished opinions. RCW
2.06.040.
II
Ms. Buhr's second assignment of error is to the dismissal of her claim against
Stewart Co. In addition to arguing that she presented evidence that Stewart Co. was Ms.
Buhr's employer, she argues that the definition of "employer" in the Washington Law
Against Discrimination (WLAD), chapter 49.60 RCW, captures a parent corporation that
acts in its subsidiary's interest, which she claims Stewart Co. did here. Finally, and
alternatively, she suggests that we should apply the federal standard for "integrated
enterprises" to hold Stewart Co. jointly liable for any discrimination by its subsidiary.
On an appeal from summary judgment, the standard of review is de novo. Hisle v.
Todd Pac. Shipyards Corp. , 151 Wash. 2d 853, 860, 93 P.3d 108 (2004) (citing Kruse v.
Hemp, 121 Wash. 2d 715, 722,853 P.2d 1373 (1993)). Summary judgment will be upheld
if the pleadings, affidavits, answers to interrogatories, admissions, and depositions
establish that there is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter oflaw. CR 56(c); Hisle, 151 Wn.2d at 860-61. We view
all facts and reasonable inferences from the facts in a light most favorable to the
nonmoving party. Jones v. Allstate Ins. Co., 146 Wash. 2d 291, 300, 45 P.3d 1068 (2002).
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The moving party bears the initial burden of proving that there is no genuine issue
of material fact. Young v. Key Pharm., Inc., 112 Wash. 2d 216, 225, 770 P.2d 182 (1989).
If it meets its initial burden, the nonmoving party must present evidence that material
facts are in dispute. Atherton Condo. Apartment-Owners Ass 'n Bd. 0/Dirs. v. Blume
Dev. Co., 115 Wash. 2d 506, 516, 799 P.2d 250 (1990). The nonmoving party cannot rely
on mere allegations, speculation, or argumentative assertions that unresolved factual
issues remain. Seven Gables Corp. v. MGMlUA Entm't Co., 106 Wash. 2d 1, 13, 721 P .2d 1
(1986). If it fails to present evidence that material factual issues remain, then summary
judgment is proper. Atherton, 115 Wn.2d at 516.
The WLAD forbids discrimination by "any employer." RCW 49.60.030(1)(a),
.180. It does not define "employee" or "employer" other than to provide that "employee"
does not include an individual employed by a parent, spouse, child, or in domestic service
of a person and to provide that '''employer' includes any person acting in the interest of
an employer, directly or indirectly, who employs eight or more persons." RCW
49.60.040(10), (11); De Water v. State, 130 Wn.2d 128,921 P.2d 1059 (1996). The
statutory definition of "employer" enlarges the common law meaning of "employer" to
include other persons acting in the employer's interest and at the same time narrows it to
exclude small businesses. Because it does not define "employer" further, we presume the
legislature intended the word to mean what it did at common law, as modified by the
statute. Cf Marquis v. City o/Spokane, 130 Wn.2d 97,110,922 P.2d 43 (1996) (since
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term "employee" is not further defined, "we therefore presume the legislature intended
the word to mean what it did at common law, as limited by the statute").
Regulations promulgated by the Human Rights Commission rely generally on
common law principles to identify employment relationships. See WAC 162-16-230.
The identification of who controlled the work to be performed by Ms. Buhr, who paid the
consideration for her work, and who treated her as an employee for tax purposes are key
indications of who was her common law employer. Cf Anaya v. Graham, 89 Wash. App.
588, 593, 950 P.2d 16 (1998) (looking to employer's payroll to determine whether an
employment relationship existed where the number of persons employed is in dispute).
Turning to the WLAD's extension of employer status to persons "acting in the
interest of an employer, directly or indirectly" as employers, Washington decisions look
to such persons' involvement in the employment policy or decisions that result in
discrimination and hold them liable for their own discriminatory acts. Brown v. Scott
Paper Worldwide Co., 143 Wash. 2d 349, 358, 361, 20 P.3d 921 (2001) (holding, that
individual supervisor, "along with their employers, may be held liable for their
discriminatory acts"). The WLAD has not been construed to extend liability for
discrimination to persons acting in the interest of an employer in matters unrelated to
employment.
A "person" is defined by the WLAD to include one or more corporations. RCW
49.60.040(19). An affiliated corporation can be an "employer" for WLAD purposes,
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then, if it acts in the interest of an employee's common law employer, directly or
indirectly, in matters related to employment, in which case it can be liable for its own
discriminatory acts. Rules promulgated by the Human Rights Commission are in accord.
WAC 162-16-220(6) (providing that the separate character of "cormected corporations"
such as those in a parent-subsidiary relationship may be disregarded if there is a common
management of employment policy and personnel management).
Stewart Co.'s motion for summary judgment submitted that there was no genuine
issue of material fact that might support Ms. Buhr's claim that it was her common law
employer or that it had acted in the interest of Stewart Spokane, directly or indirectly, in
matters related to her employment. In support of its motion, it offered the testimony of
Anthony Carollo, Stewart Spokane's president, that he interviewed and independently
made the decision to hire Ms. Buhr without the involvement of any shareholder; that she
reported to him; and that he made the decision to discharge her, without any involvement
by Stewart Co. Mr. Carollo testified that Ms. Buhr's compensation and benefits were
provided by Stewart Spokane, that it carried workers' compensation insurance for her
benefit, and that it paid employment taxes in cormection with her employment. He
testified that while Stewart Co. is a 51 percent shareholder of Stewart Spokane, Stewart
Co. appoints only two of Stewart Spokane's five corporate directors and does not
exercise control over Stewart Spokane's day-to-day operations or its employees. He
finally testified that Stewart Spokane is responsible for its own liabilities and assets,
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maintains its own bank accounts, manages its own revenues and operating expenses,
funds its own payroll and benefit plans, files independent tax returns, and distributes
profits to Stewart Co. and its other, 49 percent Spokane-based shareholder when such
distributions are approved by its board of directors.
Stewart Co. also presented the following testimony given by Ms. Buhr when
deposed:
Q. Now, Ms. Buhr, you were hired by Stewart Title of Spokane,
correct?
A. Yes.
Q. And the work you performed was work for Stewart Title of
Spokane, correct?
A. Yes.
Q. And you were paid by Stewart Title of Spokane, correct?
A. Yes.
Q. And you were supervised by individuals who were employed by
Stewart Title of Spokane?
A. Yes.
Q. And you received employee benefits through Stewart Title of
Spokane?
A. Yes.
Q. Were you ever employed by a different Stewart company or
entity other than Stewart Title of Spokane?
[Objection as to speculative.]
A. No.
Q. Who did you consider your employer to be when you worked at
Stewart Title of Spokane?
A. Anthony Carollo.
CP at 278-79.
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Stewart Co.'s evidence was sufficient to meet its initial burden of demonstrating
that there was no genuine issue of material fact on the essential employment element.
Ms. Buhr offered hundreds of pages of evidence in opposition, but none that met
the requirements of CR 56( e).
She submitted a declaration in which she testified that she "worked for the
national Stewart Title Company, through its local Spokane office-hence, 'Stewart Title
a/Spokane"'; that her company was "based in Houston" and employees referred to the
Houston office as '''Corporate'''; and that she represented to customers that they were
"Stewart Title based in Houston, acting through its Spokane office," in order to let
customers know that they are Spokane originated, but successful and stable nationally.
CP at 1804-07. These assertions lacked foundation, were conclusory or hearsay, and
were unsupported by specific facts.
She submitted the Form 10-K filed with the United States Securities and Exchange
Commission by Stewart Information Services Corporation, a publicly traded company
whose stock is listed on the New York Stock Exchange under the symbol "STC" (and
whom we refer to hereafter as "STC") for its fiscal year ending December 31, 2006. The
Form 10-K identifies Stewart Title Company-the defendant we have referred to as
Stewart Co.-as an STC subsidiary incorporated in Texas. Ms. Buhr relies on the
consolidated financial reporting and references in the Form 10-K to, e.g., "our"
customers, "our" employees, and states in which "we" do business, as evidence that
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Stewart Co. was Ms. Buhr's employer. Br. of Appellant at 7-10. But the Form 10-K was
filed by STC, not Stewart Co., and it states prominently that "[a]s used in this report,
'we', 'us', 'our', the 'Company', and 'Stewart' mean Stewart Information Services
Corporation and our subsidiaries, unless the context indicates otherwise." CP at 1463
(emphasis added) (italics omitted). The financial statements included were disclosed by
the company's auditors to be the "consolidated financial statements of Stewart
Information Services Corporation and subsidiaries." CP at 1493 (report ofKPMG LLP).
"'It is a general principle of corporate law deeply "ingrained in our economic and
legal systems" that a parent corporation ... is not liable for the acts of its subsidiaries.'"
Minton v. Ralston Purina Co., 146 Wash. 2d 385, 398, 47 P.3d 556 (2002) (quoting United
States v. Best/oods, 524 U.S. 51, 61,118 S. Ct. 1876, 141 L. Ed. 2d 43 (1998) (quoting
William O. Douglas & Carrol M. Shanks, Insulationfrom Liability Through Subsidiary
Corporations, 39 YALELJ. 193 (1929))). Exhibit 21.1 to the Form 10-K reveals that
STC has many subsidiaries, including 12 incorporated in the state of Washington. The
Form 10-K discloses a reason for the existence of so many subsidiaries, pointing out that
"[t]itle insurance companies are subject to comprehensive state regulations covering
premium rates, agency licensing, policy forms, trade practices, reserve requirements,
investments and the transfer of funds between an insurer and its parent or its subsidiaries
and any similar related party transactions." CP at 1466. The fact that STC's business is
conducted under a national brand, but by local subsidiaries, is no basis for characterizing
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STC, let alone Stewart Co., as Ms. Buhr's employer. She has identified no basis for
piercing the corporate veil. Cf Ralston, 146 Wn.2d at 398 (the liability of a parent
corporation requires a basis in state law for piercing the corporate veil).
More germane-although not as to Stewart Co.-was Ms. Buhr's evidence that
Stewart Spokane relies for payroll functions, some accounting, benefits, and human
resources support on a different affiliate, Stewart Title Guaranty (Stewart Guaranty). I
Stewart Guaranty is not STC and it is not Stewart Co. It is identified in STC's Form 10­
K as a distinct STC subsidiary incorporated in Texas. Among Ms. Buhr's evidence of
Stewart Spokane's relationship with Stewart Guaranty was her application for
employment by Stewart Spokane, which included a directive to Stewart Spokane to
"Submit copy to Stewart Title Guarantee-Houston Employee Services." CP at 479
(italics omitted). She offered her "Associate Handbook," identified on its cover page and
first page as produced by "Stewart Title of Spokane," but which refers to a 401 (k) plan
adopted by Stewart Guaranty and its affiliates and includes references to Stewart Title
and STC. CP at 879, 881. She offered correspondence that she had with employees of
Stewart Guaranty after she was discharged, internal Stewart Guaranty communications
I The trial court's decision denying Ms. Buhr's motion to extend discovery is not
before us for review as it relates to discovery concerning Stewart Guaranty, because that
consequence of its decision does not prejudicially affect the court's order granting
Stewart Co. 's motion for summary judgment.
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dealing with her discharge, and the electronic mail response that she ultimately received
from a Stewart Guaranty employee, explaining why she was fired.
She offered portions of Mr. Carollo's deposition testimony, in which he conceded
that Stewart Spokane relied on Stewart Guaranty for payroll services and human
resources support. As Mr. Carollo explained it, Stewart Spokane employees' time cards
were collected, reviewed, and approved by Stewart Spokane management, and then
forwarded to Stewart Guaranty for payroll processing. He was unsure whether, in
assisting with payroll, Stewart Guaranty paid wages directly from a Stewart Spokane
bank account or paid them from a Stewart Guaranty account using funds transferred from
or reimbursed by Stewart Spokane. Ms. Buhr tries to cast Mr. Carollo's uncertainty
about the banking details as raising a question of who paid Ms. Buhr's wages but his
deposition and declaration are clear that whatever the mechanics of deposit, it was
Stewart Spokane who paid the wages, directly or indirectly. Ms. Buhr did not offer the
tax Forms W-2 that she would have received for the two calendar years she worked at
Stewart Spokane that would, pursuant to federal law, disclose the name, address, and tax
identification number of her employer.
Ms. Buhr finally offers miscellaneous payroll and human resources documents
that include generic references to "Stewart," "Stewart Employee Services," or "Stewart
Title." Given the support that Stewart Co. admits was provided to Stewart Spokane by
Stewart Guaranty and the existence of a number of other STC subsidiaries revealed by
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STC's Form 10-K to have the words "Stewart Title" in their names, Ms. Buhr can only
ask that we speculate that those generic references are to Stewart Co. rather than to
Stewart Spokane, Stewart Guaranty, or some other affiliate.
Though voluminous, Ms. Buhr's opposition materials do not include evidence
made on personal knowledge, setting forth specific facts that create a genuine issue of
fact that Stewart Co. was her employer under the WLAD. She presents, at best,
allegations, speculation, and argumentative assertions that unresolved factual issues
remain.
Unable to demonstrate that Stewart Co. was her common law employer or acted in
her employer's interest, Ms. Buhr finally asks this court to read into the WLAD a concept
of "integrated enterprises" recognized by federal employment law, and, on that basis, to
treat Stewart Co. as her co-employer. As pointed out in Anderson v. Pacific Maritime
Ass 'n, 336 F.3d 924, 928-29 (9th Cir. 2003), the "integrated enterprise" concept is not
applied to determine whether an entity can be jointly liable with a common law
employer. It is applied, instead, to determine whether a defendant employs enough
people to be subject to Title VII of the federal Civil Rights Act of 1964, 42 U.S.C.
§ 2000e. If a common law employer employs enough persons on its own to bring it
within Title VII's statutory coverage, the integrated enterprise concept is not needed and
does not apply. Jd.
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No. 30 I 64-8-III
Buhr v. Stewart Title ofSpokane LLC
Washington courts may look to equivalent federal law and cases interpreting such
law for guidance in construing the WLAD. Marquis, 130 Wn.2d at 109. But
Washington cases have previously recognized that the definitions of an "employer" under
Title VII and the WLAD are dissimilar. Scott Paper, 143 Wn.2d at 358 ("The state and
federal statutes offer significantly different definitions of the term 'employer. "'). And if
Washington courts were to apply the integrated enterprise concept at all, it would be in
the context in which it applies under federal law: to determine whether Stewart Spokane
has enough employees to be subject to the WLAD. It does; it has more than eight. There
is no reason to apply the integrated enterprise concept.
Finally, Ms. Buhr included a request for an award of attorney fees and costs on
appeal under RAP 18.1, pointing to RCW 49.60.030 as a statutory basis for fee and cost
recovery by a prevailing plaintiff. She has not prevailed. Her request for fees and costs
is denied.
Dismissal of Ms. Buhr's claims against Stewart Co. is affirmed.
WECONL, Siddoway, J.
Korsmo,~
Kulik, 1.
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