SNAPSHOT: This is a case summary of Scrivener v. Clark College, 181 Wn.2d 439, 334 P.3d 541 (Wash. 2014). It contains multiple sections. The following section is a snapshot of key data including case citation, description, categories, and impact on Legal Trees. Look for the green button throughout this article for more helpful information.
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I. SNAPSHOT
case citation
Scrivener v. Clark College, 181 Wn.2d 439, 334 P.3d 541 (Wash. 2014)
DESCRIPTION
“Kathryn Scrivener sued Clark College, claiming that age was the reason it did not hire her for a tenure track teaching position. She was 55 years old at the time, squarely within the 40- to 70-year-old age range protected by the WLAD. The chosen hires were both under the age of 40.” Id. at 441.
“The trial court granted summary judgment in Clark College’s favor, finding that Scrivener failed to prove that the college’s stated reason for its decision was a pretext.” Id.
“The Court of Appeals affirmed.” Id. (citing Scrivener v. Clark Coll., 176 Wn.App. 405, 407, 309 P.3d 613 (2013), review granted, 179 Wn.2d 1009, 316 P.3d 495 (2014)).
“Today, we clarify the standard plaintiffs must meet to overcome summary judgment. Employees may satisfy the pretext prong of the McDonnell Douglas framework by offering sufficient evidence to create a genuine issue of material fact either (1) that the employer’s articulated reason for its action is pretextual or (2) that, although the employer’s stated reason is legitimate, discrimination nevertheless was a substantial factor motivating the employer.” Id. at 441-42 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
“Applying this standard, we reverse summary judgment. Scrivener created a genuine issue of material fact concerning whether age was a substantial factor motivating Clark College’s decision to hire younger candidates.” Id. at 442.
CATEGORIES
(1) Standard of Review
(2) Age Discrimination
(3) The McDonnell Douglas Framework
(4) The Pretext Prong
(5) The Stray-Remarks Doctrine
LEGAL TREEs
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CASE SUMMARY SECTION: The following section contains background facts and enumerates material evidence that the Court considered in this case.
II. CASE SUMMARY
BACKGROUND FACTS:
[1] “Scrivener began teaching as an adjunct instructor at Clark College in 1994.” Scrivener v. Clark College, 181 Wn.2d 439, 442, 334 P.3d 541 (Wash. 2014).
[2] “In 2005, she applied for a tenure-track teaching position in the English Department.” Id.
[3] “The screening committee … chose four candidates to refer to the president and vice president of instruction.” Id.
[4] “Scrivener was one of the four candidates the committee referred to the president and vice president.” Id.
[5] “She possessed all of the qualifications listed as required and desirable on the recruitment announcement.” Id.
[6] “President Branch and interim Vice President of Instruction Sylvia Thornburg interviewed Scrivener in May 2006 and informed her the same day that she was not chosen to fill either of the vacant English positions.” Id.
[7] “Instead, Clark College hired two applicants under the age of 40. Scrivener was 55 years old at the time.” Id.
[8] “The trial court granted summary judgment in Clark College’s favor, finding that Scrivener failed to prove that the college’s stated reason for its decision was a pretext. The Court of Appeals affirmed.” Id. at 441 (internal citations omitted).
SCRIVENER’S EVIDENCE:
[9] “Scrivener successfully taught at the college as a full-time professor since 1999, before which she taught as an adjunct professor.” Id. at 449.
[10] “[Scrivener] … fulfilled all the minimum requirements and the desired qualifications, while neither of the hired candidates fulfilled all of the desired qualifications.” Id.
[11] “President Branch was responsible for making final hiring decisions.” Id.
[12] “Before the college finalized the description of the English instructor position, President Branch spoke at a public forum and advocated requiring zero experience for the college level instructor position.” Id. (paragraph formatting added).
[13] “[I]n the midst of the hiring process, President Branch gave his State of the College address. He declared,
The most glaring need for diversity [in Clark College’s workforce] is in our need for younger talent. 74% of Clark College’s workforce is over forty. And though I have a great affinity for people in this age group, employing people who bring different perspective will only benefit our college and community.
Id.
[14] “During that same time, President Branch filled faculty positions with more people under age 40 than people in the protected class.” Id. at 450.
[15] “[T]he president mocked … [Scrivener] with a reference to a television show associated with younger people and indicated he wanted candidates that display youthfulness.” Id.
EMPLOYER’S EVIDENCE:
[16] “[T]he other candidates were clearly qualified and were the ‘best fit’ for the college and department.” Id. at 449.
[17] “President Branch’s statements in the State of the College address … [are] stray remarks that do not give rise to an inference of discriminatory intent.” See id. at 450 (emphasis added).
Scrivener v. Clark College, 181 Wn.2d 439, 334 P.3d 541 (Wash. 2014).
GENERAL RULES SECTION: The following section contains general rules. Our website uses the term “general rules” to mean the Court’s statement of relevant laws in this case.
III. GENERAL RULES
The General Rules Section for this case includes the following topics:
1. Standard of Review;
2. Age Discrimination;
3. McDonnell Douglas Framework;
4. Pretext Prong; and
5. Stray-Remarks Doctrine.
1. STANDARD OF REVIEW
(A) DE NOVO REVIEW
“We review a trial court’s grant of summary judgment de novo.” Scrivener v. Clark College, 181 Wn.2d 439, 444, 334 P.3d 541 (Wash. 2014) (citing Camicia v. Howard S. Wright Constr. Co., 179 Wn.2d 684, 693, 317 P.3d 987 (2014)).
(B) NO GENUINE ISSUE OF MATERIAL FACT
“Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Id. (citing CR 56(c)).
(C) LIGHT MOST FAVORABE TO NONMOVING PARTY
“When making this determination, we consider all facts and make all reasonable, factual inferences in the light most favorable to the nonmoving party.” Id. (citing Young v. Key Pharm., Inc., 112 Wn.2d 216, 226, 770 P.2d 182 (1989)).
2. AGE DISCRIMINATION
(A) WA LAW AGAINST DISCRIMINATION (WLAD)
PURPOSE OF WLAD: “The purpose of Washington’s Law Against Discrimination (WLAD), chapter 49.60 RCW, is to eliminate and prevent discrimination in the workplace.” Id. at 441 (citing RCW 49.60.010).
“The legislature passed the statute after finding that discrimination threatens not only the rights and proper privileges of [Washington] inhabitants but menaces the institutions and foundation of a free democratic state.” Id. (citing RCW 49.60.010) (alteration in original) (internal quotation marks omitted). “Accordingly, the legislature directs us to construe the WLAD liberally.” Id. (citing RCW 49.60.020).
AGE LIMITATION (40-70): “Under the WLAD, it is an unfair practice for an employer to refuse to hire any person on the basis of age if the person is within the protected class of individuals between the ages of 40 and 70.” Scrivener, 181 Wn.2d at 444 (citing RCW 49.60.180(1); Griffith v. Schnitzer Steel Indus., Inc., 128 Wn.App. 438, 446-47, 115 P.3d 1065 (2005)).
SUBSTANTIAL FACTOR: “At trial, the WLAD plaintiff must ultimately prove that age was a ‘substantial factor’ in an employer’s adverse employment action.” Id. (internal citations omitted).
(B) SUBSTANTIAL FACTOR
MEANS SIGNIFICANT MOTIVATING FACTOR: “A ‘substantial factor’ means that the protected characteristic was a significant motivating factor bringing about the employer’s decision.” Id. (internal citations omitted).
DOES NOT MEAN SOLE FACTOR: “It does not mean that the protected characteristic was the sole factor in the decision.” Id. (internal citations omitted).
(C) DETERMINING FACTOR STANDARD REJECTED
DETERMINING-FACTOR STANDARD REJECTED: “In Mackay[ v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 898 P.2d 284 (1995),] we rejected the proposition that employees must prove that discrimination was the ‘determining factor’ (i.e., that but for the discrimination, the employer’s decision would have been different).” Scrivener, 181 Wn.2d at 445 (citing Mackay, 127 Wn.2d at 309-10).
POLICY: “We reasoned that to hold otherwise would be contrary to Washington’s ‘resolve to eradicate discrimination’ and would warp this resolve into ‘mere rhetoric.'” Id. (internal citation omitted). “We refused to erect the high barrier to recovery implicated by the ‘determining factor’ standard … .” Id. (internal citation omitted) (alteration in original).
(D) SUMMARY JUDGMENT
SELDOM APPROPRIATE FOR WLAD CASES: “[S]ummary judgment to an employer is seldom appropriate in the WLAD cases because of the difficulty of proving a discriminatory motivation.” Id. (internal citations omitted).
HOW TO OVERCOME SUMMARY JUDGMENT: “To overcome summary judgment, a plaintiff needs to show only that a reasonable jury could find that the plaintiff’s protected trait was a substantial factor motivating the employer’s adverse actions.” Id. (internal citation omitted).
BURDEN OF PRODUCTION, NOT PERSUASION: CIRCUMSTANTIAL EVIDENCE OKAY: “This is a burden of production, not persuasion, and may be proved through direct or circumstantial evidence.” Id. (internal citation omitted).
(E) BURDEN-SHIFTING ANALYSIS
PROOF VIA CIRCUMSTANTIAL EVIDENCE: “Where a plaintiff lacks direct evidence, Washington courts use the burden-shifting analysis articulated in McDonnell Douglas, 411 U.S. 792, [93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),] to determine the proper order and nature of proof for summary judgment.” Scrivener, 181 Wn.2d at 445 (internal citations omitted).
3. THE MCDONNELL DOUGLAS FRAMEWORK
The McDonnell Douglas Framework has three prongs.
(A) STEP 1: THE PRIMA FACIE CASE
EMPLOYEE BURDEN: “Under the first prong of the McDonnell Douglas framework, a plaintiff bears the initial burden of establishing a prima facie case of discrimination, which creates a presumption of discrimination.” Id. at 446 (internal citations omitted).
(B) STEP 2: LEGITIMATE NONDISCRIMINATORY REASON
EMPLOYER BURDEN: “Once the plaintiff establishes a prima facie case, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action.” Id. (internal citations omitted).
(C) STEP 3: PRETEXT
EMPLOYEE BURDEN: “If the Defendant meets this burden, the third prong of the McDonnell Douglas test requires the Plaintiff to produce sufficient evidence that Defendant’s alleged nondiscriminatory reason for [the employment action] was a pretext.” Id. (internal citations omitted) (alteration in original).
OVERCOMING SUMMARY JUDGMENT: “Evidence is sufficient to overcome summary judgment if it creates a genuine issue of material fact that the employer’s articulated reason was a pretext for a discriminatory purpose.” Id. (internal citations omitted).
(D) PROCEEDING TO TRIAL
“If the plaintiff satisfies the McDonnell Douglas burden of production requirements, the case proceeds to trial, unless the judge determines that no rational fact finder could conclude that the action was discriminatory.” Id. (internal citations omitted).
4. THE PRETEXT PRONG
(A) TWO METHODS
“An employee may satisfy the pretext prong by offering sufficient evidence to create a genuine issue of material fact either[:]
(1) that the defendant’s reason is pretextual or
(2) that although the employer’s stated reason is legitimate, discrimination nevertheless was a substantial factor motivating the employer.
Id. at 446-47 (internal citations omitted) (emphasis added).
OPTION (1): The Pretextual-Reason Method
EXAMPLES: A plaintiff may establish pretext under option #1 by showing 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. at 447 (internal citation omitted) (paragraph formatting and emphasis added).
OPTION (2): The Substantial-Factor Method
“[A] plaintiff may also establish pretext by proving that discrimination was a substantially motivating factor in the employment decision.” Id. at 448.
(B) DISPROVING EACH REASON NOT REQUIRED
“An employee does not need to disprove each of the employer’s articulated reasons to satisfy the pretext burden of production.” Id. at 447.
PLAINTIFF’S BURDEN AT TRIAL: Our case law clearly establishes that it is the plaintiff’s burden at trial to prove that discrimination was a substantial factor in an adverse employment action, not the only motivating factor.” Id. (internal citation omitted).
POLICY: “An employer may be motivated by multiple purposes, both legitimate and illegitimate, when making employment decisions and still be liable under the WLAD.” Id. (internal citation omitted).
5. STRAY-REMARKS DOCTRINE
THE RULE: “Under [the stray-remarks doctrine] … statements that non-decision-makers make or that decision makers make outside of the decisional process are deemed ‘stray,’ and they are irrelevant and insufficient to avoid summary judgment.” Id. at 451, fn. 3 (referencing Reid v. Google, Inc., 50 Cal.4th 512, 516, 235 P.3d 988, 113 Cal.Rptr.3d 327 (2010)) (internal quotation marks omitted).
REJECTED BY CALIFORNIA SUPREME COURT (REID v. GOOGLE, INC.): “In Reid, the California Supreme Court rejected the stray remarks doctrine.” Scrivener, 181 Wn.2d at 451, fn. 3 (citing Reid, 50 Cal.4th at 538-46). “The court rejected the doctrine because it was ‘unnecessary and its categorical exclusion of evidence might lead to unfair results.'” Id. (citing Reid, 50 Cal.4th at 517; see id. at 538-46). “The court noted, ‘An age-based remark not made directly in the context of an employment decision or uttered by a non-decision-maker may be relevant, circumstantial evidence of discrimination.'” Id. (citing Reid, 50 Cal.4th at 539).
(A) WA SUPREME COURT ALSO REJECTS STRAY-REMARKS DOCTRINE
WASHIGTON AGREES WITH CALIFORNIA: The Washington State Supreme Court agreed with the California Supreme Court in Reid v. Google, Inc. in rejecting the Stray-Remarks Doctrine. See Scrivener, 181 Wn.2d at 451, fn. 3 (“We agree”). Accordingly, the WA Supreme Court applied its associated reasoning to the case in Scrivener:
The Court of Appeals disregarded President Branch’s statements in the State of the College address as stray remarks that do not give rise to an inference of discriminatory intent. We disagree. Whether or not these statements alone would be sufficient to show either pretext or that Scrivener’s age was a substantially motivating factor, they are circumstantial evidence probative of discriminatory intent.
Id. at 450 (internal citations omitted) (emphasis added).
ISSUES SECTION: The following section explains the court’s treatment of this case by separately presenting each issue followed by associated rules, analysis, and conclusion. The text color of each issue statement is always blue.
IV. ISSUES
ISSUE #1: Did Scrivener present sufficient evidence to create a genuine issue of material fact either (1) that Clark College’s articulated reason was a pretext or (2) that although the reason is legitimate, age was a substantial motivating factor in Clark College’s decision not to hire Scrivener?
(A) SCRIVENER PRESENTED SUFFICIENT EVIDENCE TO CREATE A GENUINE ISSUE OF MATERIAL FACT EITHER (1) THAT CLARK COLLEGE’S ARTICULATED REASON WAS A PRETEXT OR (2) THAT ALTHOUGH THE REASON IS LEGITIMATE, AGE WAS A SUBSTANTIAL MOTIVATING FACTOR IN CLARK COLLEGE’S DECISION NOT TO HIRE SCRIVENER
“We hold that Scrivener presented sufficient evidence to create a genuine issue of material fact either (1) that Clark College’s articulated reason was a pretext or (2) that although the reason is legitimate, age was a substantial motivating factor in Clark College’s decision not to hire Scrivener.” Id. at 448.
The Court utilized the McDonnell Douglas framework to evaluate this issue. See § III(3) (General Rules: McDonnell Douglas Framework), supra. The Pretext Prong (Step 3) was the only element in dispute. See § III(4) (General Rules: The Pretext Prong), supra.
(1) Scrivener Presented Sufficient Evidence to Create a Genuine Issue of Material Fact That Clark College’s Articulated Reason Was a Pretext
EMPLOYER’S EVIDENCE: “[T]he other candidates were clearly qualified and were the ‘best fit’ for the college and department.” Id. at 449.
SCRIVENER’S EVIDENCE: “Scrivener successfully taught at the college as a full-time professor since 1999, before which she taught as an adjunct professor.” Id. “[Scrivener] … fulfilled all the minimum requirements and the desired qualifications, while neither of the hired candidates fulfilled all of the desired qualifications.” Id. In addition, the Court determined:
When making all reasonable inferences in the light most favorable to the nonmoving party, the individual charged with hiring tenured faculty wanted to hire young individuals for the English position (at the expense of excluding members of a statutorily protected class).
President Branch was responsible for making final hiring decisions. Before the college finalized the description of the English instructor position, President Branch spoke at a public forum and advocated requiring zero experience for the college level instructor position.
Id. (paragraph formatting added).
COURT’S ANALYSIS: “The college articulated ambiguous reasons for not hiring Scrivener.” Id. “These are vague descriptions.” Id. “A trier of fact could infer that the president wanted to attract more youthful candidates when making all reasonable inferences in the light most favorable to Scrivener.” Id.
CONCLUSION: “In response to Clark College’s articulated reason for not hiring her, Scrivener presented circumstantial evidence that age actually played a role in the college’s decision.” Id. 448-49.
(2) Scrivener Presented Sufficient Evidence to Create a Genuine Issue of Material Fact That Although the Reason Is Legitimate, Age Was a Substantial Motivating Factor in Clark College’s Decision not to Hire Scrivener
SCRIVENER’S EVIDENCE: “[I]n the midst of the hiring process, President Branch gave his State of the College address.” Id. at 449. “He declared,
The most glaring need for diversity [in Clark College’s workforce] is in our need for younger talent. 74% of Clark College’s workforce is over forty. And though I have a great affinity for people in this age group, employing people who bring different perspective will only benefit our college and community.
Id. “During that same time, President Branch filled faculty positions with more people under age 40 than people in the protected class.” Id. at 450. Lastly, “[T]he president mocked her with a reference to a television show associated with younger people and indicated he wanted candidates that display youthfulness.”
COURT’S ANALYSIS: “[Branch’s] … statement is not a typical diversity statement. He expresses a desire to hire individuals not within a protected class (people under 40) rather than individuals within a protected class.” Id. at 449-50.
CONCLUSION: “Taken together, the evidence presented by Scrivener creates a genuine issue of material fact concerning whether age was a substantial motivating factor in Clark College’s decision not to hire Scrivener.” Id. at 450.
(3) The Court of Appeals Erroneously Applied the Pretext-Prong Standard
RULE: see § III(4) (General Rules: The Pretext Prong), supra.
a) Pretextual-Reason Method (Applied by Court)
COURT OF APPEALS ONLY APPLIED THIS METHOD: “[T]he Court of Appeals required Scrivener to disprove that Clark College’s articulated reasons were motivating factors[pursuant to the 4 examples under the Pretextual-Reason Method].” Id. at 447 (emphasis added); see § III(4) (General Rules: The Pretext Prong), supra.
b) Substantial-Factor Method (Omitted by Court)
COURT OF APPEALS ERRONEOUSLY OMITTED THIS METHOD: However, “[t]he Court of Appeals omitted from these four factors the possibility of proving that discrimination was a substantially motivating factor in the employment decision … .” Id.; see § III(4) (General Rules: The Pretext Prong), supra.
c) The Correct Standard
“A plaintiff may satisfy the pretext prong using one of the four factors listed by the Court of Appeals, but the plaintiff may also satisfy the pretext prong by presenting sufficient evidence that discrimination nevertheless was a substantial factor motivating the employer.” Id. at 448.
(B) SUMMARY JUDGMENT REVERSED (REMANDED)
“The parties presented reasonable but competing inferences of discriminatory and nondiscriminatory intent. Therefore, a jury should weigh the evidence.” Id. at 450. “We reverse the order granting summary judgment and remand to the trial court for further proceedings consistent with this opinion. Attorney fees abide the final outcome.” Id. at 450-51.
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