Blackburn v. Department of Social and Health Services, 186 Wn.2d 250 (Wash. 2016)

NOTE: The following article is my summary of an appellate court opinion based upon my point of view. This is not a resource for the actual and complete appellate court opinion. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.


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CASE SUMMARY:

(1)  Nine employees (Employees) of Western State Hospital (WSH) assert that their employer has illegally taken race into account when making staffing decisions in response to patients’ race-based threats or demands.

(2)  WSH is a division of the Department of Social and Health Services. [The Court] … refer[s] to the respondents collectively as the ‘State’ throughout this opinion.

(3)  After a six-day bench trial, the trial court found that WSH managers issued a staffing directive that prevented African-American staff from working with a violent patient making threats over the course of one weekend in 2011.

(4)  Despite this race-based staffing directive, the trial court entered a verdict for the State and dismissed Employees’ employment discrimination claims.

(5)  [The Supreme Court] … reverse[d] the trial court and [held] … that the State’s racially discriminatory staffing directive violates the Washington Law Against Discrimination (WLAD), RCW 49.60.180(3).

-Blackburn v. Department of Social and Health Services, 186 Wn.2d 250 (Wash. 2016).


ISSUE #1:  Were the Plaintiffs’ challenges to the trial court’s factual findings sufficient to disturb the trial court’s factual findings under the substantial evidence standard?

 

-RULE-

STATUTORY CONSTRUCTION (PRESUMPTION OF PROSPECTIVE APPLICATION):  The Court reviews findings of fact for substantial evidence. Id. at 256 (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 352, 172 P.3d 688 (2007)). The party challenging the trial court’s factual findings had the burden to prove they are not supported by substantial evidence. Id. (referencing Fisher Props., Inc., v. Arden-Mayfair, Inc., 115 Wn.2d 364, 369, 798 P.2d 799 (1990)).

MEANING OF SUBSTANTIAL EVIDENCE:  Substantial evidence means evidence that is sufficient to persuade a rational, fair-minded person of the truth of the finding. Id. (citing Hegwine, 162 Wn.2d at 353) (internal citation and quotation marks omitted).

SUBSTITUTE JUDGMENT:  As long as the substantial evidence standard is met a reviewing court will not substitute its judgment for that of the trial court even though it might have resolved a factual dispute differently. Id. (citing Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879-80, 73 P.3d 369 (2003)) (internal quotation marks omitted).

DE NOVO REVIEW:  The Court reviews conclusions of law de novo. Id. (citing Robel v. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002); Hegwine, 162 Wn.2d at 348, 353).

 

-ANALYSIS-

In this case, the Court explained that Employees challenged various factual findings by the trial court generally related to the duration and frequency of the State’s race-based staffing practices. One staffing directive involved a communication that “no staff members of a certain race were to be assigned to a particular ward over the course of one weekend.” Significantly, the trial had found that this racial staffing directive lasted only one weekend and that the Employees were not subjected to similar staffing incidents. Accordingly, the Supreme Court found that the trial court “weighed the witnesses’ testimony and credibility and implicitly determined that other staffing decisions described were not substantially similar to the” subject racial staffing directive.

 

-CONCLUSION-

The Court held that substantial evidence supported the trial court’s factual findings, and based on the Court’s review of the record, the Plaintiffs’ challenges were not sufficient to disturb the trial court’s factual findings pursuant to the substantial evidence test.

 


ISSUE #2:  Did the employees prevail on their disparate treatment claim?

 

-RULE-

WLAD GENERALLY:  “The WLAD makes it unlawful for an employer ‘[t]o discriminate against any person in compensation or in other terms or conditions of employment because of … race.” Id. at 258 (citing RCW 49.60.180(3)).

DISPARATE TREATMENT:  Disparate treatment “is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Id. (citing Shannon v. Pay ‘N Save Corp., 104 Wn.2d 722, 726, 709 P.2d 799 (1985) (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 53 L.Ed.2d 396 (1977))).

VALID JUSTIFICATION:  “When an employee makes out a claim of disparate treatment under WLAD, like Title VII, the employer’s action is unlawful unless the employer has a valid justification.” Id. at 258-59 (referencing, e.g., Franklin County Sheriff’s Office v. Sellers, 97 Wn.2d 317, 328-29, 646 P.2d 113 (1982); Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 132 (3rd. Cir. 1996); Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 199-200, 111 S. Ct. 1196, 113 L.Ed.2d 158 (1991) (internal citation parenthetical phrases omitted). The employer’s valid justification is more commonly known as a bona fide occupational qualification (BFOQ).

BONA FIDE OCCUPATIONAL QUALIFICATION (BFOQ):  “RCW 49.60.180 allows employers to take protected characteristics into account in limited circumstances.” Id. at 259-260 (referencing RCW 49.60.180(1) (prohibition against discrimination in hiring does not apply if based on a BFOQ), (3) (permitting segregated washrooms and locker facilities on the basis of sex and allowing the Human Rights Commission to issue regulations or rulings” for the practical realization of equality of opportunity between the sexes”), (4) (prohibition against discrimination in advertising, job applications, and preemployment inquiries does not apply if based on a BFOQ)).

THE BFOQ TEST:  “In order to satisfy the BFOQ standard, the employer must prove (1) that the protected characteristic is essential to job purposes or (2) that all or substantially all persons with the disqualifying characteristic would be unable to efficiently perform the job.” Id. (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 358, 172 P.3d 688 (2007)).

 

-ANALYSIS-

DISPARATE TREATMENT:  In this case, the trial court held that the Employees’ failed to establish a disparate treatment claim notwithstanding the subject staffing orders, because the orders were likely an overreaction. The Supreme Court disagreed finding that “this does not change the resulting discriminatory nature of the staffing decisions … [t]hese overt race-based directives affected staffing decisions in such a manner as to constitute discrimination in ‘terms or conditions of employment becuase of … race’ in violation of RCW 49.60.180(3).” Id. 

BFOQ DEFENSE:  Moreover, the Supreme Court found that the State had no valid legal justification for its determination; finding that none of the statutory exceptions under RCW 49.60.180 applied because they are based on sex, not race, and even if they applied–“which is doubtful”–the state waived the BFOQ defense.

 

-CONCLUSION-

The Court held that the trial court erred in concluding that the Employees failed to establish a disparate treatment claim and further determined that the State had no valid legal justification for its discrimination.

 


ISSUE #3:  Did the employees prevail on their hostile work environment claim?

 

-RULE-

HOSTILE WORK ENVIRONMENT:  “RCW 49.60.180(3) prohibits harassment based on a protected characteristic that rises to the level of a hostile work environment.” Id. at 260. “An employee must demonstrate four elements for a hostile work environment claim: that the harassment (1) was unwelcome, (2) was because of a protected characteristic, (3) affected the terms or conditions of employment, and (4) is imputable to the employer.” Id. (citing Glassgow v. Ga.-Pac. Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985); see also Fisher v. Tacoma Sch. Dist. No. 10, 53 Wn.App. 591, 595-96, 769 P.2d 318 (1989)).

THIRD ELEMENT (AFFECTED THE TERMS OR CONDITIONS OF EMPLOYMENT):  The third element–affected the terms or conditions of employment–“requires that the harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. at 261 (citing Glasgow, 103 Wn.2d at 406) (internal quotation marks omitted). “Harassing conduct has also been described as ‘severe and persistent,’ and it must be determined ‘with regard to the totality of the circumstances.'” Id. (citing Glasgow, 103 Wn.2d 406-07).

THIRD ELEMENT CRITERIA:  “The Court of Appeals has adopted criteria ‘[t]o determine whether the harassment is such that it affects the conditions of employment … : the frequency and severity of the discriminatory conduct; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.'” Id. at n.4 (citing Washington v. Boeing Co., 105 Wn.App. 1, 10, 19 P.3d 1041 (2000) (citing Sangster v. Albertson’s, Inc., 99 Wn.App. 156, 163, 991 P.2d 674 (2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)))).

 

-ANALYSIS-

In this case, the trial court held that the Employees did not meet the requirements of the third element; and, thereupon, the Supreme Court found that “the trial court applied the correct legal standard and did not err in concluding that the staffing decision over the course of a single weekend did not rise to the level of sever or pervasive harassment.” Id.

 

-CONCLUSION-

The Court held that “based on the trial court’s factual findings, which  we find are supported by substantial evidence, the trial court did not err in dismissing Employee’s hostile work environment claim.”

 


ISSUE #4:  Are the employees entitled to relief in the form of damages, declaratory and injunctive relief, interest, attorney fees, and costs?

 

-RULE-

REMEDIES:  RCW 49.60.030(2) allows successful plaintiffs in WLAD actions to recover damages, injunctive relief, costs, and attorney fees.” Id. 

 

-ANALYSIS-

Here, the Court determined that the plaintiff Employees were entitled to relief, because the Court had found that they both prevailed on their disparate treatment claim and complied with RAP 18.1 and RCW 49.60.030(2).

 

-CONCLUSION-

The Court remanded the “case to the trial court to determine the appropriate damages and reasonable attorney fees to award in” the case; and on “remand, the trial court should also consider whether injunctive relief is appropriate and, if so, the trial court will be responsible for crafting the scope of and enforcing any injunction issued.” Id.

 



NOTABLES & IMPLICATIONS:

TITLE VII

[~1]   “At the federal level, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, also contains antidiscrimination provisions with some similar statutory language” to WLAD. Id. at 257.

[~2]  “[W]ashington courts often look to federal case law on Title VII when interpreting the WLAD.” Id. (referencing, e.g., Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 180, 23 P.3d 440 (2001)).

[~3]  “We view Title VII cases as ‘a source of guidance,’ but we also recognize that ‘they are not binding and that we are free to adopt those theories and rationale which best further the purposes and mandates of our state statute.'” Id. (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 361-62, 753 P.2d 517 (1988)).

WASHINGTON LAW AGAINST DISCRIMINATION

[~4]  “Since 1949, the WLAD has existed to protect individuals from discrimination on the basis of race, among other protected characteristics.” Id. 

[~5]  “The WLAD ‘shall be consruted liberally’ to accomplish its antidiscrimination purposes.” Id. (citing RCW 49.60.020).

[~6]  “RCW 49.60.180 prohibits racial discrimination in employment.” Id.

 


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If you would like to learn more, consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. By reading this article, you agree to our Disclaimer|Terms-of-Use|Privacy policy.

Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979)

NOTE: The following article is my summary of an appellate court opinion based upon my point of view. This is not a resource for the actual and complete appellate court opinion. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.


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CASE SUMMARY:

(1) Barnes was hired by WNGC in the early part of 1975 as a ‘helper’ on the natural gas line.

(2) He alleges that after approximately one month’s employment at WNGC his employment was terminated because of an erroneous belief on WNGC’s part that he suffered from epilepsy.

(3) Barnes contends that he does not now, nor did he ever have, epilepsy.

(4) He alleges that his termination by WNGC was based upon a perceived but nonexistent handicap in violation of RCW 49.60.180.

(5) After filing its answer and affirmative defenses, a motion for judgment on the pleadings was made by WNGC.

(6) The trial court entered judgment dismissing the action, holding: (1) That those portions of RCW 49.60 which seek to prohibit discrimination on the basis of ‘any sensory, mental, or physical handicap’ are unconstitutionally vague and, therefore, void and alternatively, (2) That plaintiff is without standing to bring and action against defendant pursuant to the provisions of RCW 49.60.

(7) After the determination by the trial court, the Supreme Court in Chicago, Milwaukee, St. Paul & P.Ry v. Human Rights Comm’n, 87 Wash.2d 802, 557 P.2d 307 (1976), held that provision of the Act pertinent here not unconstitutionally vague.

(8) The unconstitutionality of the statute is not argued by WNGC, except [the Court is] … urged to reverse the ruling that the statute is not unconstitutionally vague for the reasons stated in the respondent Milwaukee R.R.’s brief in that case.

(9) The Court refused the invitation.

(10) The Court held that the [Washington State Human Rights Commission] regulation WAC 162.22.040(1)(b)(iii) [currently WAC 162-22-020] is within the scope of the [Washington Law Against Discrimination], and Barnes has standing to maintain this action.

(11) The Court reversed and remanded to the trial court for further proceedings consistent with this opinion.

-Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979).


ISSUE #1:  Under the WLAD, may a plaintiff have standing to sue their employer for disability discrimination when based on perceived disability?

 

-RULE-

UNFAIR PRACTICES OF EMPLOYERS:  RCW 49.60.180 declares, in part, that it is an unfair practice for any employer “to discharge or bar any person from employment because of … the presence of any sensory, mental, or physical handicap.” Id. at 578.

WASHINGTON ADMINISTRATIVE CODE:  “The Washington State Human Rights Commission (The Commission) has adopted regulation WAC 162-22-040 [currently WAC 162-22-020] as follows:

(1) For the purpose of determining whether an unfair practice under RCW 49.60.180-.190, or -.200 has occurred:

(a) A condition is a ‘sensory, mental or physical handicap’ if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question, or was denied equal pay for equal work, or was discriminated against in other terms and conditions of employment, or was denied equal treatment in other areas covered by the statutes. In other words, for enforcement purposes a person will be considered to be Handicapped by a sensory, mental or physical condition if he or she is Discriminated against because of the condition and the condition is abnormal. (emphasis in original.)

(b) ‘The presence of a sensory, mental, or physical handicap’ includes, but is not limited to, circumstances where a sensory, mental, or physical condition:

(i) is medically recognizable or diagnosable;

(ii) exists as a record of history; or

(iii) is perceived to exist, whether or not it exists in fact.

(2) An example of subsection (1)(b)(ii) is a record showing that the worker had a heart attack five years ago. An example of subsection (1)(b)(iii) is a rejection of a person for employment because he had a florid face and the employer thought that he had high blood pressure.” Id. at 579.

“The Commission … had been granted broad discretion and responsibility for administration of the Act. We must rely upon and give weight to the Commission’s interpretations of the statute reflected in its regulations.” Id. at 581.

JUDICIAL REVIEW OF REGULATIONS:  “There is a presumption that the regulation is valid, and the burden of challenging it is upon the party attacking it.” Id. at 580 (referencing Weyerhaeuser Co. v. Department of Ecology, 86 Wash.2d 310, 314, 545 P.2d 5 (1976)). The Court’s “review in such situations generally is limited to determining whether the regulation is reasonably consistent with the statute it purports to implement.” Id. (citing Weyerhaeuser Co., 86 Wn.2d at 314.).

.

-ANALYSIS-

LEGISLATIVE INTENT:  The Court initially considered legislative intent to resolve the issue presented and reasoned, “It is the intent of the legislature to prohibit discrimination in employment against a person with a sensory handicap.” Id. at 582. But “it would be an anomalous situation if discrimination in employment would be prohibited against those who possess the handicap but would not include within the class a person ‘perceived’ by the employer to have the handicap.” Id.

ESSENCE OF EMPLOYMENT DISCRIMINATION:  The Court then defined the essence of unlawful employment discrimination as “the application of unreasonable generalizations about people to the hiring, promotion and discharge of workers.” Id. It considered the history of disability as a protected class, finding, “race, religious creed and sex are among the prohibited criteria for judging workers’ qualifications because of the prejudgments often made on the basis of these characteristics.” Id. The Court explained that proscriptions of discrimination against handicapped persons were added to WLAD in 1973 on account of “similar prejudgments often made about persons afflicted with sensory, mental or physical handicaps, such as epilepsy.” Id.

LEGISLATIVE PURPOSE:  The Court also evaluated legislative purpose by first declaring that a person “who is perceived to be afflicted with epilepsy may be discriminated against because of his or her perceived handicap even though that perception turns out to be false in either case.” Id. The Court reasoned that “it would defeat legislative purpose to limit the handicap provisions of the law against discrimination to those who are actually afflicted with a handicap, such as epilepsy, and exclude from its provision those perceived as having such condition.” Id. The Court went on to declare that “prejudice in the sense of a judgment or opinion formed before the facts are known is the fountainhead of discrimination engulfing medical disabilities which prove on examination to be unrelated to job performance or to be nonexistent.” Id. It determined that the intent of the law is to “protect workers against such prejudgment based upon insufficient information.” The Court then found that “the law’s application, therefore, should not be limited to those who actually have handicaps, excluding those who are discriminated against in the same way because they are only thought to have handicaps.” Id.

PROTECTED CLASS:  Next, the Court essentially provided a broad definition of disability as a protected class: “The class protected by the statute is those persons whom the employer discharges or intends to discharge because he believes the person is afflicted with a ‘mental, sensory, or physical handicap.'” Id. at 583 (emphasis added). This definition apparently includes both actual and perceived mental, sensory, or physical handicaps.

APPLICATION OF POLICY:  The Court applied public policy to the instant case and found that WLAD’s policy to “eliminate and prevent discrimination in employment requires protecting from discriminatory practices both those perceived to be handicapped as well as those who are handicapped.” Id.

EMPLOYER’S INTERESTS:  Before reaching its holding, the Court also considered the employer’s interests reasoning that the employer was fully protected, because [WLAD] provides “that the prohibition against discrimination because of such handicaps shall not apply if the particular disability prevents the proper performance of the particular worker involved.” Id. (citing RCW 49.60.180(1)).

 

-CONCLUSION-

The Court held that Barnes had standing to maintain his action of disability discrimination under WLAD based on perceived disability; and it reversed and remanded the cause to the trial court for further proceedings consistent with its opinion.

 


ISSUE #2:  Is [former] WAC 162-22-040(1)(b)(iii) valid?

 

-RULE-

PRESUMPTION OF VALIDITY: There is a presumption that the regulation is valid, and the burden of challenging it is upon the party attacking it. Id. at 580 (internal citation omitted). The Court’s review in such situation generally is limited to determining whether the regulation is reasonably consistent with the statute it purports to implement. Id. (internal citation omitted). The Washington State Human Rights Commission has been granted broad discretion and responsibility for administration of the WLAD. Id. at 581. The Court must rely upon and give weight to the Commission’s interpretations of the statute reflected in its regulations. Id. (internal citation omitted).

 

-ANALYSIS-

See analysis under Issue #1 above..

.

-CONCLUSION-

The Court held that the Washington State Human Rights Commission regulation WAC 162.22.040(1)(b)(iii) was within the scope of the Washington Law Against Discrimination, and it reversed and remanded the cause to the trial court for further proceedings consistent with its opinion.

 



NOTABLES & IMPLICATIONS:

PUBLIC POLICY

[~1]  “Public policy, expressed by the [Washington Law Against Discrimination] to eliminate and prevent discrimination in employment requires protecting from discriminatory practices both those perceived to be handicapped as well as those who are handicapped.” Id. at 583.

WASHINGTON STATE HUMAN RIGHTS COMMISSION

[~2]  “The Washington State Human Rights Commission (referred to as the Board in the Act) is the agency established by the Washington State Law Against Discrimination (the Act) ‘with powers with respect to elimination and prevention of discrimination in employment … because of … the presence of any sensory, mental, or physical handicap; and the (commission) established hereunder is hereby given general jurisdiction and power for such purposes.’ RCW 49.60.010. The regulations have been adopted by the Commission to implement its powers to administer the Act pursuant to RCW 49.60.120:  ‘The (commission) shall have the functions, power, and duties: … (3) To adopt, promulgate, amend, and rescind suitable rules and regulations to carry out the provisions of this chapter, and the policies and practices of the (commission) in connection therewith.'” Id. at 583 n. 2

 


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If you would like to learn more, consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. By reading this article, you agree to our Disclaimer|Terms-of-Use|Privacy policy.

Alonso v. Qwest Communications Company, LLC, 178 Wn.App 734 (Div. 2 2013)

NOTE: The following article is my summary of an appellate court opinion based upon my point of view. This is not a resource for the actual and complete appellate court opinion. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.


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CASE SUMMARY:

(1) Joseph Alonso sued his employer, Qwest Communications Company LLC, and his supervisor for discrimination [based on his combat veteran, disabled person, and Mexican-American statuses.]

(2) [T]he superior court granted Qwest summary judgment dismissal of Alonso’s complaint.

(3) Alonso appeals, arguing that he provided sufficient evidence to establish prima facie discrimination claims for disparate treatment, hostile work environment, and unlawful retaliation.

(4) [The Court held] that Alonso established prima facie disparate treatment and hostile work environment claims [and reversed] the superior court’s summary judgment dismissal on those matters.

(5) [The Court held] that Alonso failed to establish a prima facie retaliation case … [and affirmed] the superior court’s summary judgment dismissal of that claim.

-Alonso v. Qwest Communications Company, LLC, 178 Wn.App 734 (Div. 2 2013).


ISSUE #1:  Did Alonso sufficiently establish a prima facie disparate treatment case under the direct evidence test?

 

-RULE-

DISPARATE TREATMENT:  “Disparate treatment is a form of discrimination that occurs when an employer treats some people less favorably than others because of race, color, religion, sex, or other protected status.” Id. at 744 (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 354 n. 7, 172 P.3d 688 (2007)). “To establish a prima facie disparate treatment claim, the employee-plaintiff must show that the employer treats some people less favorably than others because of their protected status.” Id. (citing Johnson v. Dep’t of Soc. & Health Servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)).

PRIMA FACIE TEST (2 OPTIONS):  “A plaintiff can establish a prima facie case by either offering direct evidence of an employer’s discriminatory intent, or by satisfying the McDonnell Douglas burden-shifting test that gives rise to an inference of discrimination.” Id. (citing Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1993)).

DIRECT EVIDENCE TEST:  “[A] plaintiff can establish a prima facie case by providing direct evidence that (1) the defendant employer acted with a discriminatory motive and (2) the discriminatory motivation was a significant or substantial factor in an employment decision.” Id. (citing Kastanis, 122 Wn.2d at 491). “An adverse employment action involves a change in employment conditions that is more than an inconvenience or alteration of one’s job responsibilities, such as reducing an employee’s workload and pay.” Id. at 746. Lastly, “a demotion or adverse transfer, or a hostile work environment, may also amount to an adverser employment action.” Id. 

DISCRIMINATORY REMARKS:  The court “generally consider[s] an employer’s discriminatory remarks to be direct evidence of discrimination.” Id. (referencing Johnson v. Express Rent & Own, Inc., 113 Wn.App. 858, 862-63, 56 P.3d 567 (2002)).

 

-ANALYSIS-

(1) DISCRIMINATORY MOTIVE:  The Court evaluated the case under the first prong of the Direct Evidence Test–that the employer acted with discriminatory motive–and held that “the evidence sufficiently proved that Martinez acted with discriminatory motive toward Alonso.” Id. at 745. In this case, “Martinez openly stated that he hated disabled Gulf War combat veterans and specifically that he hated that Alonso was disabled and receiving disability pay”; “[A]lonso produced evidence that Martinez referred to Mexicans as ‘Spics’ and allowed others to use the term”; “[e]mployees including Martinez openly mocked Alonso’s speech impediment and accent”; “described his speech as that of a ‘ghetto Hispanic'”; and “contrasted themselves to Alonso because they ‘spoke correct English’ unlike him.”

(2) SIGNIFICANT OR SUBSTANTIAL FACTOR IN EMPLOYMENT DECISION:  In this case, Alonso claimed that he suffered adverse action through both adverse transfer and hostile work environment.

Initially, Alonso claimed that he experienced an adverse transfer causing him to lose certain benefits including a newer van, cellular phone, and other preferences regarding equipment. The Court raised and dismissed the rule in O’Neal v. City of Chicago, 392 F.3d 909, 912 (7th Cir. 2004), essentially establishing that loss of benefits do not amount to an adverse employment action when those benefits were associated with the position from which the plaintiff transferred. See id. at 746. The Court viewed the evidence in a light most favorable to Alonso and held that his “benefits” were not tied to the position from which he transferred, and, thus, a reasonable juror could conclude that he suffered an adverse employment action when he transferred from his original position and was forced to give up those “benefits.”

Next, Alonso further argued that he experienced adverse action in that he “suffered from a negative employment decision–being subjected to an increasingly hostile work environment as the subject of harassment targeting his protected statuses.” Id. at 747. Accordingly, the Court considered derogatory comments made by Martinez and other emloyees as described above in section “(1) Discriminatory Motive”; and it also considered an additional comment allegedly made by Martinez regarding Alonso’s veteran status and PTSD — “[A]re you crazy or something?” and “[D]id you know Vietnam was over in 1978?” Id. at 748.

 

-CONCLUSION-

The Court held that “Alonso sufficiently established a prima facie disparate treatment case under the direct evidence test.” Id. at 748. It further held that “Alonso produced direct evidence of (1) Martinez’s discriminatory motive–his hatred toward Alonso as a disabled Gulf War veteran with a speech impediment and (2) how he suffered adverse employment decisions–loss of his newer van and cell phone, and an increasingly hostile work environment laden with bullying and mockery of his Mexican-American heritage and disabilities.” Id. Accordingly, the Court reversed the trial court’s dismissal of his disparate treatment claim.

 


ISSUE #2:  Did Alonso establish a prima facie hostile work environment claim?

 

-RULE-

HOSTILE WORK ENVIRONMENT:  “To establish a prima facie hostile work environment claim, the plaintiff must allege facts proving that (1) the harassment was unwelcome, (2) the harassment was because the plaintiff was a member of a protected class, (3) the harassment affected the terms and conditions of employment, and (4) the harassment is imputable to the employer.” Id. at 749 (citing Loeffelholz v. Univ. of Wash., 175 Wn.2d 264, 275, 285 P.3d 854 (2012)). “Harassment is actionable only if it is sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. (citing Antonius v. King County, 153 Wn.2d 256, 261, 103 P.3d 729 (2004)).

HARASSMENT BECAUSE OF PROTECTED CLASS (2ND ELEMENT):  To establish the 2nd element of a hostile work environment claim–that the harassment was because the plaintiff was a member of a protected class–“a plaintiff need only produce evidence that supports a reasonable inference that his protected class status was the motivating factor for the harassing conduct.” Id. at 749 (internal citations and quotation marks omitted).

HARASSMENT AFFECTED TERMS & CONDITIONS (3RD ELEMENT):  “To determine whether conduct was severe or pervasive enough to affect the terms and conditions of employment…[courts] look at the totality of the circumstances, including the frequency and severity of harassing conduct, whether it was physically threatening or humiliating, or merely an offensive utterance, and whether it unreasonably interfered with the employee’s work performance.” Id. at 751 (citing Washington v. Boeing Co., 105 Wn.App. 1, 10, 119 P.3d 1041 (2000)). “Whether offensive comments affect the conditions of employment is a factual question.” Id. (referencing Davis v. W. One Auto. Grp., 140 Wn.App. 449, 457, 166 P.3d 807 (2007), review denied, 163 Wn.2d 1040 (2008)). However, “causal, isolated, or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id. (citing Washington, 105 Wn.App. at 10).

HARASSMENT IMPUTABLE TO EMPLOYER (4TH ELEMENT):  “Harassment is imputed to an employer when an owner, manager, partner, or corporate officer personally participates in the harassment.” Id. at 754 (citing Glasgow v. Ga.-Pac. Corp., 103 Wn.2d 401, 407, 693 P.2d 708 (1985)). “Managers are those whom the employer has given authority and power to affect the hours, wages, and working conditions of the employer’s workers.” Id. (citing Robel v. Roundup Corp., 148 Wn.2d 35, 48 n. 5, 59 P.3d 611 (2002)).

 

-ANALYSIS-

(1) UNWELCOME:  In this case, the Court found that it was undisputed between the parties that Alonso did not welcome any hostility or harassment.

(2) HARASSMENT BECAUSE OF PROTECTED CLASS:  The Court considered Alonso’s offered evidence regarding military status–Martinez expressed hatred that Alonso was a disabled Gulf War combat vet and he compared his vet status to Alonso’s; regarding race–Martinez and others subjected Alonso to racially derogatory language (established above); and regarding disability–he was a victim of open mocking for his speech impediment (established above). Accordingly, the court held that Alonso satisfied this element in establishing a prima facie hostile work environment claim.

(3) HARASSMENT AFFECTED TERMS & CONDITIONS:  The Court considered the evidence referenced under element 2 above and also considered that “Alonso visited a psychiatric emergency room in response to the ‘great stress at work’ and an upsurge in PTSD symptoms.” Id. at 752. The Court then held that Alonso “sufficiently demonstrated that the alleged harassment affected the terms and conditions of his employment.” Id.

(4) HARASSMENT IMPUTABLE TO EMPLOYER:  The Court found that Alonso’s supervisor, Martinez, set his crew’s hours, managed how employees were to spend their time on projects, controlled overtime, and controlled placement on out-of-town projects. Accordingly, the Court determined that Martinez qualified as a manager for purposes of summary judgment, because he had authority to affect employee’s hours, wages (via delegating overtime) and working conditions. The Court then found that Martinez participated in some of the harassment as described above.  Ultimately, the Court held that Alonso established that the harassment is imputable to the employer through supervisor Martinez.

 

-CONCLUSION-

The Court held both that Alonso established a prima facie hostile work environment claim and that the superior court erred in granting Qwest’s summary judgment motion on this issue. Accordingly, the Court reversed the trial court’s dismissal  of his hostile work environment claim.

 


ISSUE #3:  Did the superior court err in dismissing Alonso’s retaliation claim?

 

-RULE-

UNLAWFUL RETALIATION:  “The WLAD prohibits retaliation against a party asserting a claim based on a perceived violation of his civil rights or participating in an investigation into alleged workplace discrimination.” Id. at 753 (citing RCW 49.60.210). “To establish a prima facie retaliation case, a plaintiff must show that (1) he engaged in statutorily protected activity, (2) his employer took an adverse employment action against him, and (3) there is a causal link between the activity and the adverse action.” Id. at 753-54 (citing Short v. Battle Ground Sch. Dist., 169 Wn.App. 188, 205, 279 P.3d 902 (2012)).

PROTECTED ACTIVITY:  “An employee engages in WLAD-protected activity when he opposes employment practices forbidden by antidiscrimination law or other practices that the employee reasonably believed to be discriminatory.” Id. at 754 (citing Short, 169 Wn.App. at 205).

GENERAL COMPLAINTS:  “A general complaint about an employer’s unfair conduct does not rise to the level of protected activity in a discrimination action under WLAD absent some reference to the plaintiff’s protected status.” Id. (referencing Graves v. Dep’t of Game, 76 Wn.App. 705, 712, 887 P.2d 424 (1994)).

 

-ANALYSIS-

The Court initially evaluated whether Alonso met the first element of an unlawful retaliation claim — that he participated in protected activity. Here Alonso used a company hotline to make a general complaint about corruption, mistreatment, and vulgar language against both his supervisor (Martinez) and another employee. Id. at 754. However, Alonso “did not express that his complaints were in response to harassment based on any protected status.” Id. Thus, the Court held that Alonso did not establish the first element, because he did not phone the hotline to report discrimination against him based on a protected class. Id.

 

-CONCLUSION-

The Court held that Alonso failed to sufficiently establish a prima facie retaliation case, because he did not demonstrate that he engaged in statutorily protected activity. Therefore, the Court affirmed the trial court’s dismissal of his unlawful retaliation claim.

 



NOTABLES & IMPLICATIONS:

ADVERSE TRANSFER

[~1]  Transfer to a position with the same work for the same pay and within the same union contract classification can still be considered an adverse transfer if the former position came with some benefits (e.g., newer vehicle, cellular phone, preference in employer-supplied workstations, computers, desk telephones, etc.) that the new position does not provide. See id. at 746.

HOSTILE WORK ENVIRONMENT (PROTECTED CLASS)

[~2]  Just two comments may be enough to support a reasonable inference that an employee’s protected class status was the motivating factor for harassing conduct. See id. at 749-50 (supervisor openly expressed he hated that plaintiff was a disabled Gulf War combat veteran and compared his own veteran status to plaintiff’s).

HOSTILE WORK ENVIRONMENT (TERMS & CONDITIONS)

[~3]  An “employee’s alleged humiliation and self-diagnosed mental sickness from ‘racially charged’ workplace comments raised an inference that condition resulted from hostile work environment.” Id. at 751 (referencing Davis v. W. One Auto. Grp., 140 Wn.App. 449, 457, 166 P.3d 807 (2007), review denied, 163 Wn.2d 1040 (2008) (emphasis added).

HOSTILE WORK ENVIRONMENT (IMPUTABLE TO EMPLOYER) — ASSIGNING OVERTIME

[~4]  A supervisor/manager may have authority to affect an employee’s wages if the supervisor/manager had the ability to determine who could earn overtime. See id. at 752 (referencing Robel v. Roundup Corp., 148 Wn.2d 35, 48 n. 5, 59 P.3d 611 (2002)).

TITLE VII FOR GUIDANCE 

[~5]  “Because our discrimination laws substantially parallel Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e to 2000e-17, [courts] …may look to federal law for guidance.” Id. at 755, n. 10 (citing Phanna K. Xieng v. Peoples Nat’l Bank of Wash., 120 Wn.2d 512, 518, 844 P.2d 389 (1993)).

 


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If you would like to learn more, consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. By reading this article, you agree to our Disclaimer|Terms-of-Use|Privacy policy.

Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79 (Wash. 1991)

NOTE: The following article is my summary of an appellate court opinion based upon my point of view. This is not a resource for the actual and complete appellate court opinion. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.


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CASE SUMMARY:

(1) Allison sued the Housing Authority of the City of Seattle [(hereinafter, ‘Housing Authority’)], claiming, among other things, that the Housing Authority retaliated against here for filing an age discrimination complaint when she was released in a reduction in force.

(2) In a special verdict form, a jury found that the Housing Authority had discriminated and/or retaliated against Allison when she was laid off.

(3) The Housing Authority appealed to the Court of Appeals, claiming that the jury instruction on proximate causation for a retaliation claim was erroneous.

(4) That jury instruction required Ms. Allison to show that her discharge was motivated ‘to any degree by retaliation.’

(5) On appeal, the Washington State Court of Appeals Division I reversed and remanded the case, holding that the jury instruction should have required Allison to show that, but for filing a discrimination complaint, she would not have been discharged.

(6) [The WA Supreme Court] declined to adopt either the ‘but for’ standard advanced by the Court of Appeals or the ‘to any degree’ standard used by the trial court.

(7) [The WA Supreme Court] adopt[ed] an intermediate standard for causation, a ‘substantial factor’ approach, and remanded this case to the trial court.

-Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79, 81 (Wash. 1991).


ISSUE #1:  What is the appropriate standard of causation when an employee brings a claim of retaliatory discharge under RCW 49.60.210?

 

-RULE-

The Washington Law Against Discrimination (WLAD) “contains a sweeping policy statement strongly condemning many forms of discrimination.” Id. at 85 (citing RCW 49.60.010). The WLAD requires that it “shall be construed liberally for the accomplishment of the purposes thereof.” Id. at 85-86 (citing RCW 49.60.020). In resolving a question of statutory construction, the Court will “adopt the interpretation which best advances the legislative purpose.” Id. at 86 (internal citations and quotation marks omitted). Federal case law “is not unequivocal, and is only persuasive authority.” Id. at 91. And “Title VII differs from RCW 49.60 in that Title VII does not contain a provision which requires liberal construction for the accomplishment of its purposes.” Id. at 88.

 

-ANALYSIS-

The Court evaluated the issue based on several argument categories as follows: (1) arguments based on the language of RCW 49.60; (2) arguments based on Federal and Washington state case law; (3) arguments based on public policy considerations; and (4) the Wilmot case.

(1) LANGUAGE OF RCW 49.60:  The Court determined that the “language of RCW 49.60 supports a more liberal standard of causation than the ‘but for’ standard adopted by the Court of Appeals. Id. at 85. The Housing Authority utilized Title VII cases for analogy and attempted to argue theoretically higher causation requirements under RCW 49.60.180 (discrimination) should also be applied to RCW 49.60.180 case” and, thus, such a standard “may be illusory”; that Title VII differs from RCW 49.60 because it “does not contain a provision which requires liberal construction for the accomplishment of its purposes”; and that “the ‘but for’ standard of causation adopted by the Court of Appeals in the instant case would negatively affect enforcement of WLAD Id. at 88.

(2) FEDERAL & STATE CASE LAW:  The Court considered various case law offered by the parties at both the federal and state level. It then concluded that federal case law does not give clear support for the adoption of a stringent “but for” standard of causation, and state case law does not directly address the issue of whether the liberal “to any degree” language should be used in jury instructions; and the Court has never approved the “to any degree” standard. Id. at 91. “Because federal law is not unequivocal, and is only persuasive authority, we adopt a standard that best corresponds with the language and policies contained in this state’s antidiscrimination law.” Id. at 91.

(3) PUBLIC POLICY CONSIDERATIONS:  The Court evaluated policy considerations at opposite ends of the dichotomy — the “but for” test on the one end and the “to any degree” test on the other. It then reasoned that competing policy considerations dictate that the most sensible approach is to adopt an intermediate standard test–the “substantial factor” approach–generally applied in multiple causation cases. Id. at 95. This would address the issue of both legitimate and illegitimate motives that often lurk behind discriminatory or retaliatory discharge while preventing employees from abusing the protection that the–“to any degree”–lower standard of causation would give them.

(4) THE WILMOT CASE:  The Court then applied the public policy considerations that it expressed in Wilmot v. Kaiser Aluminum & Chemical Corp., 118 Wn.2d 46, 821 P.2d 18; a case in which the court applied the “substantial factor” approach to a retaliation claim under RCW 51.48.025 for filing a workers’ compensation claim. Particularly, the court analogized Wilmot to the instant case by explaining (a) that in both cases, the relevant statutes prohibit an employer from retaliating against an employee for opposing discrimination; and (b) that under both statutes, “employees are at a distinct disadvantage in a retaliation case because they must prove causation without the benefit of the employer’s own knowledge of the reason for the discharge” — “an employee does not have the access to proof that an employer usually has.” Id. at 96.

 

-CONCLUSION-

The Court in this case held that a “plaintiff bringing suit under RCW 49.60.210 must prove causation by showing that retaliation was a substantial factor motivating the adverse employment decision.” Id. at 96. It then remanded the cause to the trial court for retrial on the issue of whether age discrimination and/or retaliation caused Allison’s discharge.

 


ISSUE #2:  Is the evidence in this case insufficient to support an inference that discrimination and/or retaliation caused Allison’s discharge?

 

-RULE-

(The Court evaluated an unpublished portion of the Court of Appeals’ opinion in this case)

Testimonial evidence that supports an inference of discrimination and/or retaliation, when looked at in a light most favorable to the plaintiff, may be sufficient to allow a case to go to the jury. See id. at 98.

 

-ANALYSIS-

The employer (Housing Authority) in this case argued that there was insufficient evidence to support an inference that discrimination and/or retaliation caused Allison’s discharge. Id. at 96.

DISCRIMINATION EVIDENCE: The Court considered the following trial court evidence regarding Allison’s discrimination claim: (a) Allison’s manager made remarks about “little old ladies”; (b) the manager became hostile towards Allison when she learned Allison’s true age of 62; (c) after the manager learned Allison was in her sixties, her ratings of Allison declined; and (d) the manager refused Allison’s request for additional work. Id. at 97.

RETALIATION EVIDENCE: The Court considered the following trial court evidence regarding Allison’s retaliation claim: (a) Allison’s manager gave her an allegedly unwarranted reprimand; (b) after Allison filed her suit, the manager gave Allison her lowest performance evaluation; and (c) an “aging checklist” was pinned on Allison’s cubicle after she filed her discrimination suit. Id.

 

-CONCLUSION-

The Court held that “based on the evidence listed above, the Court of Appeals was correct in its conclusion that there was thin, but sufficient testimony for this case to go to the jury.”

The Court also addressed attorney’s fees.

 


NOTABLES & IMPLICATIONS:

ATTORNEY’S FEES

[~1]  RCW 49.60.030(2) has been interpreted as granting parties to attorney fees on appeal. Id. at 98 (citing Fahn v. Cowlitz Cy., 95 Wn.2d 679, 685, 628 P.2d 813 (1981); Pannell v. Food Servs. of Am., 61 Wn.App. 418, 449-50, 810 P.2d 952 (1991)).

CAUSATION

[~2]  “The ‘but for’ standard of causation adopted by the Court of Appeals in Allison will negatively affect enforcement of the law against discrimination.” Id. at 88.

MCDONNELL DOUGLAS APPROACH

[~3]  Under the McDonnell Approach–McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973)–“the plaintiff must establish a prima facie case, and then the burden of production shifts to the defendant to state a legitimate reason for the employment decision; the plaintiff can attempt to prove that the employer’s offered reason is a pretext.” Id. at 88-89 (internal citations omitted).

[~4]  Under the McDonnell Approach, “the burden of persuasion remains at all times upon the pliantiff/employee” in a discrimination or retaliation claim. Id. at 90, 93 (citing Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 363, 753 P.2d 517 (1988); and citing Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 821 P.2d 18 (1991), respectively).

[~5]  Under the McDonnell Approach, the “federal cases provide only guidance” and “even the McDonnell test should not be rigidly applied. Id. (citing Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 362, 753 P.2d 517 (1988)).

WLAD GENERALLY

[~6]  The WLAD “does not provide any criteria for establishing a discrimination case.” Id. at 88 (citing Grimwood, 110 Wn.2d at 361).

[~7]  The WLAD “contains a sweeping policy statement strongly condemning many forms of discrimination.” Id. at 85 (citing RCW 49.60.010).

[~8]  The WLAD requires that “this chapter shall be construed liberally for the accomplishment of the purposes thereof.” Id. at 85-86 (citing RCW 49.60.020).

[~9]  The enforcement of the WLAD “depends in large measure on employee’s willingness to come forth and file charges or testify in discrimination cases. Id. at 86.

[~10]  “Plaintiffs bringing discrimination cases assume the role of a private attorney general, vindicating a policy of the highest priority.” Id. (internal citations and quotation marks omitted).

 


LEARN MORE

If you would like to learn more, consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. By reading this article, you agree to our Disclaimer|Terms-of-Use|Privacy policy.