The Lab Archives — LAW OFFICE OF GREGORY A. WILLIAMS

March 23, 2023October 21, 2024

Motion to Dismiss Under CR 12(b)(6)

Under Washington State court rules, how do judges generally address a motion to dismiss under CR 12(b)(6)? 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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WASHINGTON STATE SUPERIOR COURT CIVIL RULES (CR)

Pursuant to the Washington State Superior Court Civil Rules (hereinafter, “CR”), a motion to dismiss under CR 12(b)(6) may be presented as follows:

(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

…

(6) failure to state a claim upon which relief can be granted[ ]

CR 12(b)(6) (first emphasis in original). Thus, pleaders may assert the defense of “failure to state a claim upon which relief can be granted” by, inter alia, motion (hereinafter, “motion(s) to dismiss under CR 12(b)(6)” or “motion to dismiss”). Employment discrimination defendants (usually employers) typically file motions to dismiss under CR 12(b)(6) early in the case and file motions for summary judgment near the end of the case. There are significant differences between the two types of motions.

MOTION TO DISMISS VERSUS MOTION FOR SUMMARY JUDGMENT

“A motion to dismiss questions only the legal sufficiency of the allegations in a pleading.” Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 742 (Wash. 1977). “The court need not find that any support for the alleged facts exists or would be admissible in trial as would be its duty on a motion for summary judgment.” Id. (emphasis added).

HOW JUDGES GENERALLY ADDRESS THE MOTION TO DISMISS UNDER CR 12(B)(6)

“The question under CR 12(b)(6) is basically a legal one, and the facts are considered only as a conceptual background for the legal determination.” Id. (citing Brown v. MacPherson’s, Inc., 86 Wash.2d 293, 298, 545 P.2d 13 (1975)). Thus, “[t]he only issue Before the trial judge is whether it can be said there is no state of facts which plaintiff could have proven entitling him to relief under his claim.” Id. (citing Barnum v. State, 72 Wash.2d 928, 435 P.2d 678 (1967); Grimsby v. Samson, 85 Wash.2d 52, 55, 530 P.2d 291 (1975)).

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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.

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.

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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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July 28, 2022October 21, 2024

Overcoming Stare Decisis (WA State)

Under Washington State laws, how does one overcome the doctrine of stare decisis? Here’s my point of view.

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THE DOCTRINE OF STARE DECISIS

The doctrine of stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” State v. Johnson, 188 Wn.2d 742, 756, 399 P.3d 507 (2017) (internal citations and quotation marks omitted). It is a “doctrine developed by courts to accomplish the requisite element of stability in court-made law, but is not an absolute impediment to change.” State v. Otton, 185 Wn.2d 673, 678, 374 P.3d 1108 (2016) (citing In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970)) (internal quotation marks omitted).

The court will typically consider a party’s request for it to reject its prior decision when it’s based upon either one or both of the following two approaches: (1) clear showing; and (2) intervening authority. See State v. Otton, 185 Wn.2d at 678 (internal citations and quotation marks omitted).

1. The Clear-Showing Approach

The clear-showing approach is far more common than the intervening-authority approach, and it requires the requesting party to clearly show the following:

a. That the established rule is incorrect; and

b. That the established rule is harmful.

See id. (internal citations and quotation marks omitted) (emphasis added).

2. The Intervening-Authority Approach

The intervening-authority approach is relatively rare. The requesting party essentially asks the court to “eschew prior precedent in deference to intervening authority where the legal underpinnings of … [the court’s] precedent have changed or disappeared altogether.” See id. (citing W.G. Clark Constr. Co. v. P. Nw. Reg’l Council of Carpenters, 180 Wn.2d 54, 66, 322 P.3d 1207 (2014) (internal citations and quotation marks omitted).

FRAMING THE ISSUE

When a party asks the Washington State Supreme Court to reject its prior decision, “it is an invitation … [it] … [does] not take lightly.” Id. (citing State v. Barber, 170 Wn.2d 854, 863, 248 P.3d 494 (2011)) (internal quotation marks omitted). According to the court, the issue is framed as follows:

The question is not whether we would make the same decision if the issue presented were a matter of first impression. Instead, the question is whether the prior decision is so problematic that it must be rejected, despite the many benefits of adhering to precedent–” ‘promot[ing] the evenhanded, predictable, and consistent development of legal principles, foster[ing] reliance on judicial decisions, and contribut[ing] to the actual and perceived integrity of the judicial process.'”

Otton, 185 Wn.2d at 678 (citing Keene v. Edie, 131 Wn.2d 822, 831, 935 P.2d 588 (1997)) (internal citation omitted) (alteration to original) (emphasis added).

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July 21, 2022October 21, 2024

Disparate Treatment: Pretext by Comparison

Under the McDonnell Douglas Burden-Shifting Scheme (hereinafter, “McDonnell Douglas“), may a Washington State plaintiff establish the pretext-prong by comparison, when pursuing a claim of disparate treatment? Here’s my point of view.

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MCDONNELL DOUGLAS BURDEN-SHIFTING SCHEME

In the summary judgment context, to succeed on a claim of disparate treatment using McDonnell Douglas, the plaintiff must first establish a prima facie case of discrimination. See Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007).

If the plaintiff states a prima facie case, the burden shifts to the defendant-employer to articulate a legitimate, non-discriminatory reason for the challenged action. Chuang v. Univ. of Cal. Davis, Bd. Of Trs., 225 F.3d 1115, 1123-24 (9th Cir. 2000) (quotation marks omitted).

If the employer meets this burden, the plaintiff must then show a triable issue of material fact as to whether the defendant’s stated reason is mere pretext for unlawful discrimination. Hawn v. Exec. Jet Mgmt, Inc., 615 F.3d 1151, 1155 (9th Cir. 2010) (quotation marks omitted) (emphasis added). This last requirement is know as the prextext prong.

THE PRETEXT PRONG

Generally, to prove pretext under McDonnell Douglas, a plaintiff must show that the defendant’s articulated reasons

(1) had no basis in fact,

(2) were not really motivating factors for its decision,

(3) were not temporally connected to the adverse employment action, or

(4) were not motivating factors in employment decisions for other employees in the same circumstances.

Id. (internal citation omitted) (emphasis and paragraph formatting added). The fourth element allows a plaintiff to prove pretext by using comparison.

PROVING PRETEXT BY COMPARISON

Accordingly, to prove pretext by comparison in Washington State, a plaintiff must show that

(1) an employee outside the protected class

(2) committed acts of comparable seriousness

(3) but was not demoted or similarly disciplined.

Johnson v. Department of Social & Health Services, 907 P.2d 1223, 80 Wn.App. 212, 227 (Wash.App. Div. 2 1996) (referencing Hiatt v. Rockwell Int’l Corp., 26 F.3d 761, 770 (7th Cir.1994)) (paragraph formatting added).

Arguably, acts of comparable seriousness need not be violations of identical company disciplinary rules. See, e.g., Hiatt v. Rockwell Intern. Corp., 26 F.3d 761, 770 (7th Cir. 1994) (Court previously held that “acts of comparable seriousness need not be violations of identical company disciplinary rules”) (internal citation omitted). Plaintiffs are free to compare similar conduct, focusing more on the nature of the misconduct rather than on specific company rules. Id. (internal citation omitted).

OCCASIONAL LENIENCY NOT ENOUGH

However, plaintiffs may need to demonstrate more than occasional leniency toward other employees who had engaged in conduct of a similar nature. See id. at 771 (internal citation and quotation marks omitted). Ultimately, “incomplete or arbitrary comparisons reveal nothing concerning discrimination.” Id. (internal citations omitted).

READ OUR RELATED ARTICLES

» Definition of Prima Facie Case**

» Disparate Treatment: A Closer Look**

» Disparate Treatment: Bona Fide Occupational Qualification**

» Disparate Treatment vs. Disparate Impact Discrimination**

» Disparate Treatment via Hostile Work Environment**

» McDonnell Douglas Framework (Step 1): The Prima Facie Case**

» Prima Facie Case: The Replacement Element**

» The Prima Facie Case: Disparate Treatment

» The Prima Facie Case: Disparate Treatment via Direct Evidence

» WLAD: Disparate Treatment via Hostile Work Environment

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

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January 13, 2022October 21, 2024

Rendering a Verdict: WA State Versus Federal Court

Under both Washington State and federal statutes and court rules, what is the difference in number of jurors required to render a jury verdict in a civil trial? 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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WASHINGTON STATE

In Washington, only five jurors in a jury of six, or ten jurors in a jury of twelve, are required to render a verdict in a civil trial. RCW 4.44.380. The relevant text is as follows:

In all trials by juries of six in the superior court, except criminal trials, when five of the jurors agree upon a verdict, the verdict so agreed upon shall be signed by the presiding juror, and the verdict shall stand as the verdict of the whole jury, and have all the force and effect of a verdict agreed to by six jurors. In cases where the jury is twelve in number, a verdict reached by ten shall have the same force and effect as described above, and the same procedures shall be followed.

Id. However, pursuant to the Superior Court Civil Rules, “The parties may stipulate that the jury shall consist of any number less than 12 or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury.” CR 48.

U.S. DISTRICT COURT

Alternatively, in the United States District Court, unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least six members; and a jury must begin with at least six and no more than twelve members. FRCP 48. Each juror must partake in the verdict unless they are excused pursuant to Rule 47(c). Id.

CONCLUSION

A significant difference between federal and Washington State court systems appears to be that, unless the parties stipulate otherwise, Washington Superior Courts generally require a specific majority of jurors to render a verdict whereas the United States District Court requires unanimity.

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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

Unlawful Retaliation: The Actual-Knowledge Standard

Under Washington State law, how is the actual-knowledge standard applied to causation issues for purposes of unlawful retaliation cases? 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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UNLAWFUL RETALIATION (WA STATE)

“To establish a prima facie case of retaliation, an employee must show three things: (1) the employee took a statutorily protected action, (2) the employee suffered an adverse employment action, and (3) a causal link [(i.e., causation)] between the employee’s protected activity and the adverse employment action.” Cornwell v. Microsoft Corporation, 430 P.3d 229, 234 (Wash. 2018) (citing Currier v. Northland Servs., Inc., 182 Wn.App. 733, 742, 332 P.3d 1006 (2014); see also Wilmot v. Kaiser Alum. & Chem. Corp, 118 Wn.2d 46, 68, 821 P.2d 18 (1991) (“establishing the retaliation test in the worker’s compensation context”)) (emphasis and hyperlink added).

The focus of this article is the third element: causal link (or causation). “An employee [shows a causal link (i.e., causation)] ‘by [revealing] … that retaliation was a substantial factor motivating the adverse employment decision.’ ” Id. at 235 (Wash. 2018) (citing Allison v. Hous. Auth., 118 Wn.2d 79, 96, 821 P.2d 34 (1991)) (emphasis added).

SUMMARY JUDGMENT (WA STATE)

“[T]o avoid summary judgment on causation, the employee must show only that a reasonable jury could find that retaliation was a substantial factor in the adverse employment decision.” Id. at 235 (internal citation omitted). “Employees may rely on the following facts to show this: (1) the employee took a protected action, (2) the employer had knowledge of the action, and (3) the employee was subjected to an adverse employment action.” Id. (citing Wilmot, 118 Wn.2d at 69, 821 P.2d 18) (emphasis added).

The 2nd element (i.e., the employer had knowledge of the action) is at issue; one associated standard of causation applied to unlawful retaliation cases is the “actual knowledge” standard (hereinafter, “actual-knowledge standard”).

CAUSATION: THE ACTUAL KNOWLEDGE STANDARD (WA STATE)

Under this standard, “the employer [must] have actual knowledge of the employee’s protected action in order to prove causation.” Id. at 235. (internal citations omitted).

The policy behind the actual-knowledge standard is that “[b]ecause retaliation is an intentional act, an employer cannot retaliate against an employee for an action of which the employer is unaware.” Id. at 235-36.

But “[a] decision-maker need not have actual knowledge about the legal significance of a protected action.” Id. at 236 (emphasis added). “Instead, the decision-maker need have actual knowledge only that the employee took the action in order to prove a causal connection.” Id. (internal citations omitted) (emphasis added).

At summary judgment, “[t]he proper inquiry is whether the … evidence suggests a causal connection between the protected activity and the subsequent adverse action sufficient to defeat summary judgment.” Id. (internal citation omitted) (alteration in original) (emphasis added).

We invite you to read more of our blog articles concerning this topic:

Adverse Employment Actions: A Closer Look

Definition of Prima Facie Case*

Employment-Discrimination Hotlines & Unlawful Retaliation

The McDonnell Douglas Burden Shifting Framework*

The Prima Facie Case: Unlawful Retaliation

Top 3 Reasons Unlawful Retaliation Claims Fail

Top 3 Causation Standards: Unlawful Retaliation

Unlawful Retaliation: Adverse Employment Action

Unlawful Retaliation and the Prospective Employer

Unlawful Retaliation: The Actual-Knowledge Standard

Unlawful Retaliation: The Causal Link

Unlawful Retaliation: The Functionally-Similar Test

Unlawful Retaliation: Statutorily Protected Activity

*NOTE: The link will take the reader to our Williams Law Group Blog – an external website.

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June 29, 2021October 20, 2024

WLAD: Disparate Treatment via Hostile Work Environment

Under the Washington Law Against Discrimination, may an employee-plaintiff build a prima facie case of disparate treatment based on a hostile work environment when using the direct evidence approach? 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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WASHINGTON LAW AGAINST DISCRIMINATION

Under the Washington Law Against Discrimination (WLAD), it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age (40+); sex (including pregnancy); marital status; sexual orientation (including gender identity); race; color; creed; national origin; honorably discharged veteran or military status; HIV/AIDS and hepatitis C status; the presence of any sensory, mental, or physical disability; the use of a trained dog guide or service animal by a person with a disability; and state employee or health care whistleblower status.

It is also an unfair practice for an employer to retaliate against an employee because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit.

DISPARATE TREATMENT

Disparate treatment is a form of employment discrimination, and it occurs when an employer treats some people less favorably than others based on protected class.

Accordingly, to establish a prima facie disparate treatment discrimination case, a plaintiff must show that his employer simply treats some people less favorably than others because of their protected status. Alonso v. Qwest Commc’ns Co., LLC, 178 Wn.App. 734, 743, 315 P.3d 610 (Wash.App. Div. 2 2013) (citing Johnson v. Dep’t of Soc. & Health Servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)).

A plaintiff may 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. at 743-44 (citing Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1993)). This article solely addresses the direct evidence approach.

DIRECT EVIDENCE TEST

The plaintiff can establish a prima facie case under the direct evidence test by offering direct evidence of the following:

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. at 744 (citing Kastanis, 122 Wn.2d at 491).

SIGNIFICANT/SUBSTANTIAL FACTOR

The 2nd second element–discriminatory motivation was a significant or substantial factor in an employment decision–is at issue here. Stated differently, the plaintiff must establish that the discriminatory motive (1st element) was a significant or substantial factor in the subject employment decision. Obviously, employee-plaintiffs will be claiming that the subject employment decision was adverse to their interests.

However, 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 748 (citing Campbell v. State, 129 Wn.App. 10, 22, 118 P.3d 888 (2005), review denied, 157 Wn.2d 1002 (2006)).

A demotion or adverse transfer, or a hostile work environment, may amount to an adverse employment action. Id. at 746 (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 465, 98 P.3d 827 (2004), review denied, 154 Wn.2d 1007 (2005)) (emphasis added).

CONCLUSION

An employee-plaintiff might be able to build a prima facie case of disparate treatment based on a hostile work environment. However, the prima facie case will be incomplete unless the employee-plaintiff is also able to establish the 1st element of the direct evidence test; this article only addresses the 2nd element.

READ OUR RELATED ARTICLES

» Definition of Prima Facie Case**

» Disparate Treatment: A Closer Look**

» Disparate Treatment: Bona Fide Occupational Qualification**

» Disparate Treatment vs. Disparate Impact Discrimination**

» Disparate Treatment via Hostile Work Environment**

» Disparate Treatment: Pretext by Comparison

» McDonnell Douglas Framework (Step 1): The Prima Facie Case**

» Prima Facie Case: The Replacement Element**

» The Prima Facie Case: Disparate Treatment

» The Prima Facie Case: Disparate Treatment via Direct Evidence

» WLAD: Disparate Treatment via Hostile Work Environment

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

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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.

WASHINGTON STATE SUPERIOR COURT CIVIL RULES (CR)

MOTION TO DISMISS VERSUS MOTION FOR SUMMARY JUDGMENT

HOW JUDGES GENERALLY ADDRESS THE MOTION TO DISMISS UNDER CR 12(B)(6)

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CLAIM SPLITTING

RES JUDICATA

DISMISSAL BASED ON RES JUDICATA

CONCLUSION

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THE DOCTRINE OF STARE DECISIS

1. The Clear-Showing Approach

2. The Intervening-Authority Approach

FRAMING THE ISSUE

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MCDONNELL DOUGLAS BURDEN-SHIFTING SCHEME

THE PRETEXT PRONG

PROVING PRETEXT BY COMPARISON

OCCASIONAL LENIENCY NOT ENOUGH

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WASHINGTON STATE

U.S. DISTRICT COURT

CONCLUSION

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INDIVIDUAL CAPACITY STATE OFFICIALS

QUALIFIED IMMUNITY

SECTION 1983 QUALIFIED IMMUNITY: THE TWO-STEP PROCESS

THE POLICY

CONCLUSION

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UNLAWFUL RETALIATION (WA STATE)

SUMMARY JUDGMENT (WA STATE)

CAUSATION: THE ACTUAL KNOWLEDGE STANDARD (WA STATE)

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WASHINGTON LAW AGAINST DISCRIMINATION

DISPARATE TREATMENT

DIRECT EVIDENCE TEST

SIGNIFICANT/SUBSTANTIAL FACTOR

CONCLUSION

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CIVIL RULE 54(b) — JUDGMENTS ON MULTIPLE CLAIMS

EXPRESS DIRECTION FOR ENTRY OF THE JUDGMENT

ALL CLAIMS FOR & AGAINST ALL PARTIES

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THE GENERAL RULE

FRCP 35 EXAMS BASED ON EMOTIONAL DISTRESS: 9TH CIRCUIT

GARDEN VARIETY EMOTIONAL DISTRESS

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