PROCEDURE
Kirby sued the City, alleging continued harassment and discrimination during his employment with the TPD because of his *832 participation in protected union activities, his disability, and his age. He later amended his complaint, adding intentional infliction of emotional distress. Kirby also filed a Notice of Claim indicating his intent to assert constitutional tort claims under both the Washington State and Federal Constitutions.
The trial court granted the City's motions for partial summary judgment on all Kirby's claims, and dismissed the case. The court also dismissed Kirby's First Amendment claim, finding that the complaint failed properly to plead a First Amendment claim.
The trial court denied Kirby's motion for reconsideration under CR 59(a)(7),(8), and (9), in which he argued that he had presented sufficient evidence to defeat summary judgment ondenied, 129 Wash.2d 1011, 917 P.2d 130 (1996). Kirby satisfies the first three elements. He was over 40 years old at the time of the two captain promotions. He was first on the captain's list, had served as a temporary captain, and had received awards and commendations.
Viewing the facts and all reasonable inferences in the light most favorable to Kirby, it appears he was likely qualified for a captain position. But he was not offered the captain position. Instead, it went to a somewhat younger candidate on both occasions. But to establish a successful claim of wrongful discharge due to age discrimination, and to satisfy the fourth prong of the prima facie case, the replacement must be someone not in the protected class. See Chen v. State of