Summary Judgment and Nonmoving Party Speculation

Under Washington State summary-judgment laws, may the nonmoving party rely on speculation? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).

SUMMARY JUDGMENT: CR 56

CLAIMANTS: "A party seeking to recover upon a claim, counterclaim, or cross claim, or to obtain a declaratory judgment may, after the expiration of the period within which the defendant is required to appear, or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof." CR 56(a).

DEFENDING PARTIES: "A party against whom a claim, counterclaim, or cross claim is asserted or a declaratory judgment is sought may move with or without supporting affidavits for a summary judgment in such party’s favor as to all or any part thereof." CR 56(b).

PROCEEDINGS: "The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See CR 56(c).

NONMOVING PARTY CANNOT RELY ON SPECULATION

The court "consider[s] all facts and reasonable inferences in the light most favorable to the nonmoving party, but the nonmoving party may not rely on speculation." Specialty Asphalt & Construction, LLC v. Lincoln County, 191 Wn.2d 182, 191 (Wash. 2018) (citing Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986); Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992) ("to overcome summary judgment, 'the employee must do more than express an opinion or make conclusory statements'")) (emphasis added).

EXAMPLE: SPECIALTY ASPHALT & CONSTRUCTION, LLC v. LINCOLN COUNTY

For example, in Specialty Asphalt & Construction, LLC v. Lincoln County, 191 Wn.2d 182 (Wash. 2018), female contractor Jacobsen (majority owner of Specialty Asphalt & Construction LLC) filed suit against Lincoln County for, inter alia, gender discrimination in the making and performance of a paving-project contract. Defendant Lincoln County eventually filed a motion for summary judgment and the trial court granted the order. The Court of Appeals affirmed.

Thereafter, the Washington State Supreme Court reviewed the trial court's grant of summary judgment de novo. In so doing, it evaluated one of Jacobsen's speculative assertions, as follows:

Jacobsen believed Nollmeyer's comments and attitude via the phone call implied that he did not believe that her company, owned and operated by a woman, could handle the complexity of the job. Her beliefs about the motivation for Nollmeyer's alleged phone call are speculation, and we do not rely on them. 'A nonmoving party in a summary judgment may not rely on speculation.' 

Specialty Asphalt, 191 Wn.2d at 204 n.2 (citing Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986)) (emphasis added).

Learn More

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group; please see our DISCLAIMER.

–gw