Under Washington State canons of statutory construction, what is the canon of presumed awareness? 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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THE CANON OF PRESUMED AWARENESS
Under the canon of presumed awareness: “The Legislature is presumed to be aware of judicial interpretation of its statutes.” Dailey v. North Coast Life Insurance Company, 129 Wn.2d 572, 581 (Wash. 1996) (Talmadge, J., concurring) (reasoning 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 Friends of Snoqualmie Valley v. King County Boundary Review Bd., 118 Wash.2d 488, 496, 825 P.2d 300 (1992))).
In Dailey, the majority opinion essentially held that punitive damages are not available for employment discrimination under the Washington Law Against Discrimination, because the legislature has not expressly authorized them. Seeid at 574-75.
RELATED ARTICLE
Read our related article entitled Presumption of Acquiescenceconcerning a similar Washington State canon of statutory construction.
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Under Washington State canons of statutory construction, what is statutory parallelism? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).
(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 CANON OF STATUTORY PARALLELISM
Statutory parallelism is a term that I’ve coined for the following assumption commonly held by Washington State courts:
[W]hen the legislature uses the same word in different parts of a single statutory scheme, that word has the same meaning throughout.
EXAMPLE: CERT. FROM U.S. DIST. CT. FOR EAST DIST. OF WA IN ZHU v. NORTH CENTRAL ESD 171
In Zhu, the WA State Supreme Court decided that the Washington Law Against Discrimination (i.e., RCW 49.60.210(1)) creates “a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer[.]”
This was an issue of first impression. As part of its decision, the WA Court evaluated the Washington Law Against Discrimination (WLAD) definition of the term “employer.” In so doing, the Court concluded:
For purposes of WLAD, an ’employer’ is broadly defined as ‘any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit. . . .
This definition clearly includes prospective employers, and nothing about the statutory context indicates that ‘any employer’ means something different for purposes of the antiretaliation statute than it does for the purposes of the rest of WLAD. See Champion v. Shoreline Sch. Dist. No. 412, 81 Wn.2d 672, 676, 504 P.2d 304 (1972) (we assume that when the legislature uses the same word in different parts of a single statutory scheme, that word has the same meaning throughout).
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.
(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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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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(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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Depending on the circumstances, a plaintiff may have a choice of litigating their Washington Law Against Discrimination (WLAD) case in one of several different courts. Here are my top 3 courts for litigating WLAD claims (based on my point of view as an employment discrimination attorney in Washington State):
(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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#3 – UNITED STATES DISTRICT COURTS
United States District Courts have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States; this is known as federal question jurisdiction. It is not uncommon for Plaintiffs to bring claims in the same lawsuit under both WLAD and Title VII of the Civil Rights Act of 1964 (Title VII) — or other federal anti-discrimination laws (e.g., Americans with Disabilities Act, Section 1981, etc.). Depending on the circumstances of each case, adding the Title VII claims may give U.S. District Courts original federal-question jurisdiction over the matter.
U.S. District Courts also have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between, inter alia, citizens of different States; this is known as diversity jurisdiction. Again, depending on the circumstances of each case, WLAD plaintiffs that initially sue employers–incorporated outside of Washington State–in state court may end up in U.S. District Court based on diversity jurisdiction.
#2 – WASHINGTON STATE DISTRICT COURTS
Washington State District Courts are courts of limited jurisdiction. For civil (employment discrimination) matters, this means that the court will have jurisdiction over the matter if, for each claimant, the value of the claim or the amount at issue does not exceed one hundred thousand dollars, exclusive of interest, costs, and attorneys’ fees (check the Revised Code of Washington for current dollar amounts). Thus, this court may also be a viable option for a WLAD plaintiff if the value of the case is appropriate.
#1 – WASHINGTON STATE SUPERIOR COURTS
Washington State Superior Courts are courts of general jurisdiction; typically, there is no maximum or minimum dollar amount that must be at issue. And, unlike U.S. District Courts, a unanimous jury is not required in order to render a favorable verdict for the plaintiff. Superior courts are commonly used by plaintiffs’ attorneys to bring WLAD claims.
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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.
(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.
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