Defenses Archives — LAW OFFICE OF GREGORY A. WILLIAMS

September 1, 2022October 21, 2024

Dismissal Based on Claim Splitting

Under Washington State law, what are the requirements for dismissal based on claim splitting? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

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CLAIM SPLITTING

The general rule for claim splitting is that “if an action is brought for part of a claim, a judgment obtained in the action precludes the plaintiff from bringing a second action for the residue of the claim.” Landry v. Luscher, 95 Wn.App. 779, 782, 976 P.2d 1274 (1999) (Plaintiffs prohibited from suing for personal injuries after obtaining judgment for property damage arising out of same accident) (emphasis added); see also, Nguyen v. Sacred Heart Medical Center, 97 Wn. App. 728, 987 P.2d 634 (1999) (Plaintiff prohibited from raising a new claim on appeal after summary judgment).

RES JUDICATA

The theory of dismissal based upon claim splitting is “variously referred to as res judicata or splitting causes of action.” Landry v. Luscher, 95 Wn.App. 779, 783, 976 P.2d 1274 (1999); see also, Sound Build Homes, Inc. v. Windermere Real Estate/ South, Inc., 118 Wn.App. 617, 628, 72 P.3d 788 (Wash.App. Div. 2 2003) (theory on which dismissal is granted is variously referred to as res judicata or splitting causes of action) (hyperlink added). Thus, the rules of res judicata are typically applied to determine if improper claim splitting has occurred.

DISMISSAL BASED ON RES JUDICATA

Dismissal on the basis of res judicata (also known as claim splitting) is inappropriate unless the subsequent action is identical with a prior action in four respects:

(1) persons and parties;

(2) cause of action;

(3) subject matter; and

(4) quality of the persons for or against whom the claim is made.

Landry v. Luscher, 95 Wn.App. at 783 (internal citations omitted) (paragraph formatting added). This res judicata test is a conjunctive one requiring satisfaction of all four elements. Hisle v. Todd Pacific Shipyards Corp., 151 Wn.2d 853, 866, 93 P.3d 108 (Wash. 2004).

However, the Washington State Supreme Court has been abundantly clear: “[R]es judicata does not bar claims arising out of different causes of action, or intend to deny the litigant his or her day in court.” Id at 865, 93 P.3d 108 (hyperlink added). Ultimately, res judicata will not apply until there has been a final judicial judgment. See Phillip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60 Wash.L.Rev. 805, 807 (1985) (emphasis added).

CONCLUSION

Dismissal on the basis of res judicata (also known as claim splitting) is inappropriate unless the subsequent action is identical with a prior action in four respects: (1) persons and parties; (2) cause of action; (3) subject matter; and (4) quality of the persons for or against whom the claim is made. Landry v. Luscher, 95 Wn.App. at 783 (internal citations omitted).

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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

August 4, 2022October 21, 2024

Effective Date for Constructive Discharge (WA State)

Under Washington State laws, when is the effective date for a constructive discharge? Here’s my point of view.

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CONSTRUCTIVE DISCHARGE (OBJECTIVE STANDARD)

“To establish constructive discharge, an employee must show that an employer engaged in a deliberate act, or a pattern of conduct, that made working conditions so intolerable that a reasonable person would have felt compelled to resign.” Barnett v. Sequim Valley Ranch, LLC, 174 Wn.App. 475, 485 (Div. 2 2013) (citing Sneed v. Barna, 80 Wn.App. 843, 849-50, 912 P.2d 1035, review denied, 129 Wn.2d 1023, 919 P.2d 600 (1996)).

“This is an objective standard and an employee’s subjective belief that he had no choice but to resign is irrelevant.” Id. (citing Travis v. Tacoma Pub. Sch. Dist., 120 Wn.App. 542, 551, 85 P.3d 959 (2004)) (internal quotation marks omitted).

EFFECTIVE DATE

“A constructive discharge becomes effective on either[:]

[1] the date the employee gives notice to the employer or

[2] the last day of actual employment.

Id. at 486-87 (referencing Douchette v. Bethel Sch. Dist. No. 403, 58 Wn.App. 824, 795 P.2d 162 (1990), aff’d, 117 Wn.2d 805, 816 n. 9, 818 P.2d 1362 (1991)) (paragraph formatting added).

READ OUR RELATED ARTICLES

» Constructive Discharge In WA State**

» WLAD & The Constructive Discharge Provision**

» Wrongful Termination

** (NOTE: This is an external link that will take you to our Williams Law Group Blog.)

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April 27, 2022October 21, 2024

Presumption of Acquiescence

Under Washington State canons of statutory construction, what is the canon regarding presumption of acquiescence? Here’s my point of view.

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PRESUMPTION OF ACQUIESCENCE

Under the Presumption-of-Acquiescence canon, “Legislative silence regarding the construed portion of the statute in a subsequent amendment creates a presumption of acquiescence in that construction.” Dailey v. North Coast Life Insurance Company, 129 Wn.2d 572, 581 (Wash. 1996) (Talmadge, J., concurring) (concluding that the Washington State Legislature “clearly understood it was adopting exemplary damages as part of Washington’s antidiscrimination law when it amended RCW 49.60.030(2) in 1993 and 1995.” (citing Baker v. Leonard, 120 Wash.2d 538, 545, 843 P.2d 1050 (1993). State v. Ritchie, 126 Wash.2d 388, 393, 894 P.2d 1308 (1995). See also State v. Young, 125 Wash.2d 688, 696, 888 P.2d 142 (1995); In re King County Foreclosure of Liens, 117 Wash.2d 77, 86, 811 P.2d 945 (1991) (“the Legislature is presumed to know existing case law in areas in which it is legislating”))). Id.

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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

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March 24, 2022October 21, 2024

Employee-Handbook Liability

Under Washington State laws, are employee-handbook promises enforceable, when they address specific treatment in specific situations on which an employee justifiably relies? Here’s my point of view.

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THE AT-WILL EMPLOYMENT DOCTRINE

“Generally, an employment contract indefinite in duration is terminable at will.” Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 540 (Wash. 2017) (citing Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 223, 685 P.2d 1081 (1984)). According to the “at-will” doctrine, an employer can discharge an at-will employee for no cause, good cause or even cause morally wrong without fear of liability. See Ford v. Trendwest Resorts, Inc., 146 Wn.2d 146, 152, 43 P.3d 1223, (Wash. 2002) (citing Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 226, 685 P.2d 1081 (1984)) (internal quotation marks omitted). Conversely, an employee has the absolute right to quit his or her employment at-will. See id. However, there are three recognized exceptions to the general at-will employment rule: (1) Statutory; (2) Judicial and; (3) Contractual.

EXCEPTION TO THE AT-WILL EMPLOYMENT DOCTRINE: EMPLOYEE HANDBOOKS: PROMISES OF SPECIFIC TREATMENT IN SPECIFIC SITUATIONS

“[U]nder certain circumstances, employers may be obligated to act in accordance with policies as announced in handbooks issued to their employees.” Mikkelsen, 189 Wn.2d at 539-40 (internal citations and quotation marks omitted). For example, “if the employer has made promises of specific treatment in specific situations on which the employee justifiably relies, those promises are enforceable and may modify an employee’s at-will status.” Id. at 540 (internal citation omitted).

ELEMENTS OF THE THEORY

“Under this theory, [a plaintiff] … must show [the following:]

[a)] … that a statement (or statements) in an employee manual or handbook or similar document amounts to a promise of specific treatment in specific situations, …

[b)] that the employee justifiably relied on the promise, and …

[c)] that the promise was breached.

Id. (internal citation and quotation marks omitted) (paragraph formatting added).

CONSIDERATIONS

1. The Crucial Question

“[T]he crucial question is whether the employee has a reasonable expectation the employer will follow the discipline procedure, based upon the language used in stating the procedure and the pattern of practice in the workplace.” Id. (internal citation omitted) (alteration in original).

2. Questions of Fact

“[W]hether an employment policy manual issued by an employer contains a promise of specific treatment in specific situations, whether the employee justifiably relied on the promise, and whether the promise was breached are questions of fact.” Id. (alteration in original) (internal quotation marks and citation omitted). “Therefore, summary judgment is proper only if reasonable minds could not differ in resolving these questions.” Id. (internal citation omitted).

3. Ambiguous Discipline Policies Create Issue of Fact

“The Court of Appeals has held that ambiguous discipline policies create an issue of fact as to whether the employer made a binding promise to follow certain discipline procedures.” Id. at 543 (internal citations omitted).

4. Summary Judgment May Not Be Appropriate When Discretionary Language Negated by Other Representations

“[T]he presence of discretionary language may not be sufficient for summary judgment when other representations negate that language.” Id. at 544 (referencing, e.g., Swanson v. Liquid Air Corp., 118 Wn.2d 512, 532, 826 P.2d 664 (1992) (“We reject the premise that this disclaimer can, as a matter of law, effectively serve as an eternal escape hatch for an employer who may then make whatever unenforceable promises of working conditions it is to its benefit to make.”)) (internal quotation marks omitted).

CONCLUSION

Under the Washington State law, “if the employer has made promises of specific treatment in specific situations on which the employee justifiably relies, those promises are enforceable and may modify an employee’s at-will status.” Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 540 (Wash. 2017) (internal citations omitted).

RELATED: Read more about this topic by viewing our article entitled: Unenforceable Employment-Contract Provisions and Discrimination Claims (the link will redirect the reader to our Williams Law Group Blog — an external website).

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January 13, 2022October 21, 2024

Individual Capacity State Officials & Section 1983 Qualified Immunity

Under 42 U.S.C. § 1983 (hereinafter, “Section 1983“), may a state official sued in their individual capacity be entitled to qualified immunity? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

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INDIVIDUAL CAPACITY STATE OFFICIALS

A state official sued in his or her individual capacity may be entitled to qualified immunity, unless the official violated a constitutional right of the plaintiff and that right was “clearly established.” Nelson v. Corr. Med. Servs., 583 F.3d 522, 528 (8th Cir. 2009).

QUALIFIED IMMUNITY

“[Q]ualified immunity is an entitlement not to stand trial, that is an immunity from suit rather than a mere defense to liability.” Rudebusch v. Hughes, 313 F.3d 506, 514 (9th Cir. 2002) (citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (emphasis in original)) (internal quotation marks omitted).

As a result, “qualified immunity safeguards all but the plainly incompetent or those who knowingly violate the law.” Id. (citing Brewster v. Bd. of Educ. of the Lynwood Unified Sch. Dist., 149 F.3d 971, 977 (9th Cir. 1998) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)) (internal quotation marks omitted).

This paradigm “allows ample room for reasonable error on the part of the [official].” Id. (internal citations and quotation marks omitted). And “[i]t encompasses both mistakes of fact and mistakes of law.” Id. (internal citations and quotation marks omitted).

SECTION 1983 QUALIFIED IMMUNITY: THE TWO-STEP PROCESS

Analysis of a Section 1983 qualified-immunity issue involving an individual capacity state official typically involves a two-step process.

STEP 1: The first step requires the following question be answered: “Taken in the light most favorable to the the party asserting injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Rudebusch, 313 F.3d at 514 (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).

STEP 2: “Only after determining whether the constitutional right was violated does the court proceed to the second step of the two-part inquiry as follows: whether the law was so clearly established that ‘a reasonable official would understand that what he is doing violates that right?'” Id. (internal citations omitted).

Affirmative answers at both steps of the inquiry will typically prevent the state official from claiming qualified immunity. However, “while the sequence set forth [in Saucier ] is often appropriate, it should no longer be regarded as mandatory, and courts are permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Nelson v. Corr. Med. Servs., 583 F.3d at 528 (citing, Pearson v. Callahan, __ U.S. __, 129 S.Ct. 808, 815-16, 172 L.Ed.2d 565 (2009)).

THE POLICY

Ultimately, “the concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular [official] conduct.” Id. (internal citations omitted). And, thus, the qualified immunity analysis “occurs in the specific context of ‘the situation … confronted’ by the official.” Id. (internal citations omitted).

CONCLUSION

Under Section 1983, I believe that a state official sued in their individual capacity may be entitled to qualified immunity.

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June 29, 2021October 20, 2024

Express Direction Rule & Final Judgments: WA State

Under Washington State law, what is the Express Direction Rule and how is it applied to judgments in Washington State Superior Courts? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.

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CIVIL RULE 54(b) — JUDGMENTS ON MULTIPLE CLAIMS

Washington State Superior Court Civil Rule 54(b) governs entry of judgments on multiple claims and provides that “the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination in the judgment, supported by written findings, that there is no just reason for delay and upon an express direction for the entry of judgment.” Fluor Enterprises, Inc. v. Walter Construction, LTD., 141 Wn.App. 761, 766, 172 P.3d 368, (Div. I 2007) (quotation marks omitted).

Accordingly, the courts have held that four things are required for entry of a final judgment under CR 54(b):

(1) more than one claim for relief or more than one party against whom relief is sought;

(2) an express determination that there is no just reason for delay;

(3) written findings supporting the determination that there is no just reason for delay; and

(4) an express direction for entry of the judgment.

Fluor Enterprises, Inc., 141 Wn.App. at 766-67 (quotation marks omitted) (emphasis added).

EXPRESS DIRECTION FOR ENTRY OF THE JUDGMENT

Washington State appellate courts have clarified that element four–an express direction for entry of the judgment–requires that the trial court’s order must expressly direct entry of a CR 54(b) final judgment or it will not meet the requirements of CR 54(b). Fluor Enterprises, Inc., 141 Wn.App. at 769.

In Fluor Enterprises, Inc., there was more than one claim for relief and the trial court’s order on one of the claims did not expressly direct entry of a CR 54(b) final judgment. Consequently, the court held that the trial court’s order as to that claim did not meet the requirements of CR 54(b). Id.

ALL CLAIMS FOR & AGAINST ALL PARTIES

It is worth noting that Washington State appellate courts have expressly mandated that entry of a final judgment should await the resolution of all claims for and against all parties. Id. at 767 (internal citations omitted) (quoting Loeffelholz v. Citizens for Leaders with Ethics and Accountability Now (C.L.E.A.N.), 119 Wn.App. 665, 82 P.3d 1199, rev. denied, 152 Wn.2d 1023, 101 P.3d 107 (2004)).

Furthermore, the appellate courts have held that the following reasons justify a trial court’s delay of the entry of a final judgment until all claims had been resolved:

(1) to offset judgments favorable to each side before any enforcement activity takes place;

(2) to preclude the disruptive effects of enforcement and appellate activity while trial court proceedings are still ongoing; and

(3) to avoid a multiplicity of appeals.

Id. (internal citations and quotation marks omitted).

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June 28, 2021October 20, 2024

FRCP 35 Exams Based on Emotional Distress (9th Circuit)

Under federal law, does a plaintiff’s claim of emotional distress place his/her mental condition in controversy for purposes of FRCP 35 exams? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

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THE GENERAL RULE

If a plaintiff objects to a FRCP 35 exam, the court has discretion to enter an order compelling examination only if the employer can establish:

(A) that a physical or mental condition of the person sought to be examined is “in controversy,” and

(B) that “good cause” exists.

See Houghton v. M & F Fishing, Inc., 198 F.R.D. 666, 667 (2001) (internal citations and quotation marks omitted).

Courts in jurisdictions throughout the country are divided on the issue as to whether a claim of emotional distress places the plaintiff’s mental condition at issue (in controversy). But the modern trend in courts is to increasingly find that it does not.

FRCP 35 EXAMS BASED ON EMOTIONAL DISTRESS: 9TH CIRCUIT

The general position of courts in the 9th Circuit appears to be that a claim for emotional distress damages, by itself, is not sufficient to place the plaintiff’s mental condition in controversy for purposes of FRCP 35(a). Ford v. Contra Costa County, 179 F.R.D. 579, 580 (N.D.Cal. 1998) (referencing, Turner v. Imperial Stores, 161 F.R.D. 89, 92-97 (S.D.Cal.1995) (thoroughly surveying the relevant case law, distinguishing several unconventional cases including Smedley v. Capps, Staples, Ward, hastings & Dodson, 820 F.Supp. 1227 (N.D.Cal.1993), and determining not to set Smedly, inter alia, as precedent)) (internal quotation marks omitted).

Instead, the trend for 9th Circuit courts is as follows:

[T]he movant must also demonstrate that (1) the plaintiff has pled a cause of action for intentional or negligent infliction of emotional distress; (2) the plaintiff has alleged a specific mental or psychiatric injury; (3) the plaintiff has pled a claim for unusually severe emotional distress; (4) the plaintiff plans to offer expert testimony to support a claim of emotional distress and/or (5) the plaintiff has conceded that his or her mental condition is ” in controversy” for purposes of FRCP 35(a).

Id. (internal citation omitted).

These courts have further found that a Plaintiff merely seeking damages in excess of a million dollars for humiliation, mental anguish, and emotional distress does not justify a request for a mental examination. Turner v. Imperial Stores, 161 F.R.D. at 97.

GARDEN VARIETY EMOTIONAL DISTRESS

Thus, for example, a plaintiff seeking “garden variety emotional distress” damages in excess of one million dollars, pursuant to claims solely under the Civil Rights Act of 1964, may argue that he/she is not subject to FRCP 35 examination, because his/her mental condition is not in controversy (provided he/she does not satisfy the additional above mentioned requirements set forth in Ford v. Contra Costa County, 179 F.R.D. at 580 (N.D.Cal. 1998), supra); but whoever asserts this type argument should be prepared to fight it out in Court — the defendant(s) will likely file a motion.

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June 28, 2021October 20, 2024

The Same Actor Inference Defense

Under federal law, what is the “same actor inference” defense? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

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SAME ACTOR INFERENCE DEFENSE

The “Same-Actor-Inference” (Inference) is a potential employer defense to a claim of employment discrimination under federal law. It is applicable where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time; in that case, a strong inference arises that there was no discriminatory action. Coghlan v. American Seafoods Co. LLC, 413 F.3d 1090, 1096 (9th Cir. 2005) (internal quotation marks and citations omitted).

The Inference is based on the principle that an employer’s initial willingness to hire the employee-plaintiff is strong evidence that the employer is not biased against the protected class to which the employee belongs. Id. The Inference can be further described in terms of scope and proximity.

SCOPE

The scope of the Inference makes it is also applicable where the employee was not actually fired but merely offered a less desirable job assignment. Id. Moreover, the Same-Actor Inference is neither a mandatory presumption nor a mere possible conclusion for the jury to draw; it is a strong inference that a court must take into account on a summary judgment motion. Id. at 1098.

Thus, it is not valid to argue that the Inference is not a proper consideration at summary judgment.

PROXIMITY

As far as proximity: for the Inference to apply, it is not required that the alleged discrimination take place within a “short” period of time after the favorable action; for example, a 3 year gap in time was held to be short enough in time for the Inference to apply. Id. at 1097 (citing Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir.2000) (basing affirmance of summary judgment in an employment discrimination case in part on the fact that the plaintiff “was fired by the same man who had hired him three years earlier”)).

However, proximity becomes a potential plaintiff rebuttal when there is an allegation that unlawful bias developed by employer-actor after the favorable action and proximate to the negative employment action. See id.

The bottom line is that the Inference, if properly raised by the employer, is difficult for a plaintiff to overcome.

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June 27, 2021October 20, 2024

Washington Priority of Action Rule: Same Relief

Under the Washington Priority of Action Rule, how do Washington State courts determine if the relief is the same? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

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PRIORITY OF ACTION RULE

The Washington Priority of Action Rule (Rule) will only apply if the two relevant cases involve identical (1) subject matter, (2) parties, and (3) relief. Am. Mobile Homes of Wash. Inc. v. Seattle-First Nat’l Bank, 115 Wn.2d 307, 317, 796 P.2d 1276 (1990).

These factors must be established before the Rule should be applied. Id. The identity of the above elements must be such that a decision in one tribunal would bar proceedings in the other because of res judicata. State ex rel. Evergreen Freedom Foundation v. Washington Educ. Ass’n, 111 Wn.App. 586, 607, 49 P.3d 894 (Div. 2 2002).

If the Rule applies, the court which first gains jurisdiction of a cause retains the exclusive authority to deal with the action until the controversy is resolved. Am. Mobile Home, 115 Wn.2d at 316-17.

ELEMENT #3: IDENTICAL RELIEF

The Washington State Supreme Court has established the following factors to determine if “the relief is the same” for purposes of the Washington Priority of Action Rule:

(1) whether the form of relief available to each tribunal is the same (FORM OF RELIEF); and

(2) whether the first tribunal can resort to another to equalize any disparity in the amount of relief available between the first and second lawsuits (EQUALIZE DISPARITY)?

See, State ex rel. Evergreen Freedom Found., 111 Wn. App. at 607, 49 (holding that the remedy was the same in both suits, because the type of relief available to both courts was the same, and because the administrative agency could otherwise seek relief in superior court in the first case to equalize any disparity in the amount of relief available in the administrative tribunal).

EXAMPLE: EVERGREEN FREEDOM FOUND v. WASHINGTON EDUC. ASS’N

In Evergreen Freedom Found. v. Washington Educ. Ass’n, plaintiff attempted to amend its citizens lawsuit in superior court by adding claims that were contemporaneously being pursued by an administrative agency with statutory authority to preempt plaintiffs’ lawsuit; plaintiff sought, inter alia, the same form of remedy (i.e., a fine) as the administrative agency based on the same statute.

The court ruled that the relief was the same in both actions and upheld the trial court’s application of the priority of action rule, because the relief in both cases was a monetary fine pursuant to RCW 42.17.395(4), and because any disparity in the amount of relief available could be eliminated if the administrative tribunal ushered the claim to superior court.

The court then analyzed res judicata and concluded jurisdiction in the second court was improper under Washington Priority of Action Rule. State ex rel. Evergreen Freedom Found. v. Washington Educ., 111 Wn. App. 586, 49 P.3d 894 (2002).

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June 26, 2021October 20, 2024

Affirmative and Negative Defenses

Under federal law, are defendants allowed to plead “negative” defenses in answer to a federal complaint in federal court? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

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AFFIRMATIVE DEFENSES

“An affirmative defense, under the meaning of Fed.R.Civ.P. 8(c), is a defense that does not negate the elements of the plaintiff’s claim, but instead precludes liability even if all of the elements of the plaintiff’s claim are proven.” Lane v. Page, 272 F.R.D. 581, 598 (D.N.M. 2011) (internal citation omitted) (hyperlinks added). The burden for establishing affirmative defenses generally lies on the defendant. Id. (internal citation omitted).

NEGATIVE DEFENSES

However, “negative” defenses are merely rebuttal to plaintiff’s claims and should be stricken; the courts have held these so-called affirmative defenses (or negative defenses) simply provide a basis to negate an element of the prima facie case for relief and are restatements of denials present in earlier parts of the complaint. See id. (citing Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, 718 F.Supp.2d 1167, 1174 (N.D. Cal. 2010) (striking eight “negative” defenses); see Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir.2002) (“A defense which demonstrates that plaintiff has not met its burden of proof [as to an element plaintiff is required to prove] is not an affirmative defense.”(citing Flav-O-Rich v. Rawson Food Service, Inc., 846 F.2d 1343, 1349 (11th Cir.1988))) (internal quotation marks omitted) (hyperlinks added).

CONCLUSION

It appears that under federal law, defendants may plead “negative” defenses in answer to a federal complaint in federal court, but such negative defenses are not affirmative defenses and should be stricken as a defense. A fundamental consideration is whether the time, expense, and risk in bringing the motion to strike is outweighed by the benefit. Obviously, that is only a question for a party or party representative to answer relative to their particular matter.

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June 26, 2021October 20, 2024

Behind Closed Doors: WLAD & ESD Appeals

Under Washington State law, may an employment discrimination plaintiff use favorable findings from a previous unemployment benefits appeal against the associated defendant employer, when pursuing a claim under Washington Law Against Discrimination (WLAD)? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

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A COMMON ISSUE

Occasionally, one of my employment discrimination clients will vigorously attempt to convince me that they received favorable findings against their employer during their unemployment benefits appeal conducted through the Washington State Office of Administrative Hearings; and that the findings will help them win their subsequent discrimination lawsuit under WLAD. Unfortunately, I usually have bad news for those clients.

Stated differently, the issue is whether findings made by an administrative law judge (ALJ) during a Washington State unemployment benefits appeal hearing may be admitted in a separate employment discrimination lawsuit outside the scope of Title 50 RCW between an individual and the individual’s present or prior employer?

WA STATE EMPLOYMENT SECURITY DEPARTMENT

The Washington State Employment Security Department (ESD) was created in 1939. Its mission is to “partner to connect employers and job seekers – supporting transitions to new jobs and empowering careers.”

If an individual applies for unemployment benefits through the ESD and is denied; then the individual can request an appeal. In that case, the ESD will forward the appeal to the Washington State Office of Administrative Hearings (OAH) which is not part of the ESD. The OAH will then assign an administrative law judge to hear the case.

TITLE 50 RCW

The Washington State laws relating to the ESD are contained in Title 50 RCW, and the relevant law states as follows:

Any finding, determination, conclusion, declaration, or final order made by the commissioner, or his or her representative or delegate, or by an appeal tribunal, administrative law judge, reviewing officer, or other agent of the department for the purposes of Title 50 RCW, shall not be conclusive, nor binding, nor admissible as evidence in any separate action outside the scope of Title 50 RCW between an individual and the individual’s present or prior employer before an arbitrator, court, or judge of this state or the United States, regardless of whether the prior action was between the same or related parties or involved the same facts or was reviewed pursuant to RCW 50.32.120.

RCW 50.32.097 (emphasis and hyperlink added).

CONCLUSION

Findings made by an administrative law judge during a Washington State unemployment benefits appeal hearing are generally not admissible in a subsequent WLAD employment discrimination lawsuit (before an arbitrator, court, or judge) outside the scope of Title 50 RCW between the employee and the employee’s present or prior employer.

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June 26, 2021October 20, 2024

WLAD Civil Suits & Administrative Actions

Under the Washington Law Against Discrimination (WLAD), may plaintiffs bring private civil suits through administrative actions and associated appeals? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

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THE WASHINGTON LAW AGAINST DISCRIMINATION

“Washington’s law against discrimination, chapter 49.60 RCW, is a broad remedial statute, the purpose of which is to eliminate and prevent discrimination on the basis of” specific protected classes. Rhoades v. Department of Labor and Industries, 143 Wn.App. 832, 181 P.3d 843 (Wash.App. Div. 3 3008) (citing RCW 49.60.010).

THE CIVIL SUIT REQUIREMENT

“[WLAD] declares that the right to be free from such discrimination is a civil right enforceable by private civil action by members of the enumerated protected classes.” Id. (citing RCW 49.60.030(1), (2)) (emphasis added).

The issue is whether an administrative proceeding is considered a civil action for purposes of WLAD claims. The Washington State Court of Appeals addressed this issue in Rhoades v. Department of Labor and Industries. Id.

EXAMPLE: RHOADES v. DEPARTMENT OF LABOR AND INDUSTRIES

In Rhoades, plaintiff Tammy Rhoades “filed a claim with the Department [of Labor and Industries] after she was injured in the course of employment[.]” Rhoades, 143 Wn.App. at 836. “The Department awarded her a permanent partial disability benefit.” Id. She appealed, and “in March 2001, the Department determined that Ms. Rhoades was totally disabled and she was placed on the pension rolls.” Id. “The Department affirmed this order after reconsideration in September 2002.” Id.

However, “Ms. Rhoades disagreed with the Department’s calculation of her monthly pension amount [and] appealed the September 2002 pension order to the Board of Industrial Appeals (Board).” Id. In 2004, “the Board found that the Department’s September 2002 order was correct” except for a small interest calculation. Id. at 837.

Plaintiff Rhoades “appealed to the superior court, which affirmed the Board’s order.” Id. She then appealed to Division 3 of the Washington State Court of Appeals wherein she included, inter alia, a claim that the Department violated the Washington Law Against Discrimination, RCW 49.60. Id. at 835-36. The court of appeals found that “an administrative action and appeal is an inappropriate vehicle for” claims under RCW 49.60. Id. at 845 (emphasis added). “[A] civil suit is required.” Id.

CONCLUSION

Under the Washington Law Against Discrimination (WLAD), plaintiffs cannot bring private civil suits through administrative actions and associated appeals.

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June 26, 2021October 20, 2024

Ambiguous Contracts & Summary Judgment: WA State

Under Washington State law, how do courts view ambiguous contracts at summary judgment? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

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SUMMARY JUDGMENT NOT APPROPRIATE ON AMBIGUOUS CONTRACTS

Summary judgment is not appropriate on an ambiguous contract. Marshall v. Thurston County, 165 Wn.App. 346, 351, 267 P.3d 491 (Div. 2 2011) (holding the term “incident” as it appeared in the release of liability was ambiguous and therefore not subject to summary judgment)(quotation marks and internal citations omitted). Whether a written contract is ambiguous or not is a question of law for the courts. Dice v. City of Montesano, 131 Wn.App. 675, 128 P.3d 1253 (Div. 2 2006), rev. denied, 158 Wn.2d 1017, 149 P.3d 377 (2006).

AMBIGUOUS CONTRACT PROVISIONS

Contract provisions can be ambiguous if two reasonable meanings can be attributed to the contract or if a material contract term is uncertain or capable of being understood as having more than one meaning. Marshall v. Thurston County, 165 Wn.App. at 351 (holding the term “incident” as it appeared in the release of liability was ambiguous and therefore the release was not subject to summary judgment)(quotation marks and internal citations omitted).

EXAMPLE: MARSHALL v. THURSTON COUNTY

In Marshall v. Thurston County, Marshall filed a claim for damages in 2001 against Thurston County based on flooding to his property. Marshall eventually signed a release agreement with the County that exculpated the County from liability related to the 2001 claim as well as further claims arising from the “incident.”

However, in 2009, Marshall brought a new lawsuit for damages against the County as a result of additional flooding occurring after the release was signed. The County asserted that Marshall’s 2009 claim was barred by the previously executed release of liability, but the court found that the dispute turned on the meaning of the word “incident.”

The court then reasoned that the 2001 claim suggested two reasonable interpretations of “incident” and held that the release was ambiguous; “therefore summary judgment was not appropriate based on the meaning of the release.” Id.

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June 3, 2021October 20, 2024

Inadvertent Waiver of Res Judicata

Under Washington State Superior Court Civil Rules, how is the inadvertent waiver of the affirmative defenses of res judicata, priority of action, and claim splitting addressed? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

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WAIVER OF AFFIRMATIVE DEFENSES

The Washington State Supreme Court developed two relevant tests to determine whether a waiver of affirmative defenses has occurred:

(1) waiver based on civil rules; and

(2) common law waiver.

Compare, Farmers Ins. Co. v. Miller, 87 Wash.2d 70, 76, 549 P.2d 9 (1976) (explaining waiver pursuant to civil rules), with Oltman v. Holland America Line USA, Inc., 163 Wn.2d 236, 178 P.3d 981 (2008) (explaining common law doctrine of waiver).

It is not uncommon for defendant-employers in employment discrimination cases to inadvertently waive the affirmative defenses of res judicata, priority of action, and/or claim splitting under the civil rules (this article does not address common law waiver).

WAIVER BASED ON CIVIL RULES: RES JUDICATA, PRIORITY OF ACTION, AND CLAIM SPLITTING

Under CR 8(c), res judicata is listed as an affirmative defense and must be specifically pled. See, e.g., Rainier Nat. Bank v. Lewis, 30 Wn.App. 419, 422, 635 P.2d 153 (Wash.App. Div. 1 1981) (holding “failure of consideration” is an affirmative defense under CR 8(c) and must be specifically pled).

Particularly, in order for res judicata to have a preclusive effect, the second court must be advised of the prior proceeding, and the burden of pleading “res judicata” is listed among the affirmative defenses. See, Phillip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60 Wash.L.Rev. 805, 812 (1985) (quotations omitted) (emphasis added).

Moreover, although CR 8(c) specifically delineates 20 affirmative defenses, parties must also affirmatively plead “any other matter constituting an avoidance or affirmative defense.” Beaupre v. Pierce County, 161 Wn.2d 568, 575, 166 P.3d 712 (Wash. 2007). Thus, “claim splitting” and “priority of action” must also be specifically pled as affirmative defenses.

If specific defenses are not (1) affirmatively pled, (2) asserted with a motion under CR 12(b), or (3) tried by the express or implied consent of the parties, they will be deemed to have been waived and may not thereafter be considered as triable issues in the case. Rainier Nat. Bank, 30 Wn.App. at 422 (citing Farmers Ins. Co. v. Miller, 87 Wash.2d 70, 76, 549 P.2d 9 (1976))(emphasis added).

This affirmative defense requirement will not be abrogated where it affects the substantial rights of the parties. Id. (internal citations omitted) (emphasis added).

EXAMPLE: RAINIER NAT. BANK v. LEWIS

For example, in Rainier Nat. Bank v. Lewis, the plaintiff-bank brought an action to recover funds from a default loan guaranteed by defendants, and defendants specifically plead the affirmative defense of “failure of consideration” for the first time at summary judgment; the court held that defendants failed to specifically plead the affirmative defense “failure of consideration” in their answer and it was therefore waived. Rainier Nat. Bank v. Lewis, 30 Wn.App. 419, 635 P.2d 153 (Wash.App. Div 1 1981) (emphasis added).

CONCLUSION

Under Washington State Superior Court Civil Rules, the affirmative defenses of res judicata, priority of action, or claim splitting may be inadvertently waived if not properly plead.

An employment discrimination plaintiff facing a defendant’s motion for summary judgment based upon defenses of priority of action rule, claim splitting, and/or res judicata would be wise to evaluate whether the defendant has properly asserted such affirmative defenses at the beginning of the case in their responsive pleading; there might be a strong argument for waiver based on the civil rules. I have successfully made this argument on multiple occasions against defendant-employers at summary judgment.