SNAPSHOT: This is a case summary of Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516 (Wash. 2017). 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
Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516 (Wash. 2017)
DESCRIPTION
“The Public Utility District No. 1 of Kittitas County (district) fired Kim Mikkelsen after 27 years of service.” Id. at 520. “Mikkelsen sued the district, alleging that, among other things, her dismissal violated the Washington Law Against Discrimination (WLAD), RCW 49.60.180.” Id.
“Specifically, Mikkelsen claims that … Ward, the general manager, exhibited a bias against women and older employees and that gender and age discrimination were substantial factors in his decision to fire her. She also argues that her dismissal violates the progressive correction action policy the district distributed to its employees.” Id.
The Court clarified “that under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a plaintiff need not prove that she was replaced by a member outside her protected class in order to establish a prima facie case of discrimination.” Id.
CATEGORIES
(1) Age Discrimination
(2) Gender Discrimination
(3) Prima Facie Case
(4) At-Will Employment Status
LEGAL TREEs
Δ McDonnell Douglas Framework: Disparate Treatment Based On Termination: The Prima Facie Case
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] “Mikkelsen began working for the district in 1984, when she was 30 years old.” Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 521 (Wash. 2017).
[2] “In August 2011, [General Manager] Ward … informed … [Mikkelsen] she was fired because ‘it’s not working out.'” Id. at 524 (internal quotation marks and citation omitted).
MIKKELSEN’S EVIDENCE:
[2] “[Mikkelsen] … was an exemplary employee for over 27 years.” Id. at 534 (internal quotation marks and citation omitted).
[3] “Mikkelsen and Ward worked well together at first, but the relationship quickly soured after Mikkelsen offered constructive criticisms of Ward’s management style.” Id.
[4] “Mikkelsen testified that Ward once referred to long term employees as ‘old and stale’ and that Ward had a ‘fixation’ on a 72-year-old employee.” Id. at 536 (internal citation omitted).
[5] “Ward started working solely with the other male managers and excluded Mikkelsen from electronic management communications even though she was a manager.” Id. at 534.
[6] “Ward appointed the male managers as acting general manager in his stead whenever he was away from the office even though Mikkelsen had a year of experience running the PUD as interim general manager.” Id.
[7] “In addition to excluding her from managerial communications, Ward spoke over her during meetings, denigrated [her] in front of contemporaries and subordinates, … called her untrustworthy, … and described her decision to implement new billing software as ‘real stupid’ in front of them[]….” Id. at 534-35 (first alteration in original) (internal quotation marks and citation omitted).
[8] “Any time Mikkelsen offered any suggestions during managerial meetings, Ward would flatly dismiss them.” Id. at 535.
[9] “To be heard, Mikkelsen had to filter her suggestions through her male contemporaries because Ward would not take suggestions from her.” Id.
[10] “Ward similarly dismissed Mikkelsen’s concerns of gender bias.” Id.
[11] “When Mikkelsen suggested the labor contract that they were negotiating should be more gender neutral, Ward dismissed her suggestion and said that he would be willing to wear any uniform supplied by the District so long as it wasn’t ‘pink,’ presumably because the color is stereotypically feminine.” Id. (internal citation and quotation marks omitted).
[12] “Mikkelsen believed Ward ascribed to patriarchal gender roles and preferred that his female subordinates be submissive.” Id.
[13] “According to Mikkelsen, Ward’s misogynistic beliefs were obvious given the way he accepted criticism from her male contemporaries but not from her, and how he referred to his female clerical staff as ‘girls,’ ‘gals,’ or ‘ladies’ but avoided calling his male maintenance crew ‘guys’ or ‘men’ or ‘boys’ or other gender specific terms.” Id. (internal quotation marks omitted).
[14] “Even the other male managers noticed how Ward treated Mikkelsen differently and described this treatment as a ‘guy/girl’ issue.” Id. (internal citation and quotation marks omitted).
[15] “Additionally, whenever Ward entered Mikkelsen’s office, he would pretty consistent[ly][] … reach into his pockets and rearrange his genitals before he would sit down ….” Id. (alteration in original) (internal citation and quotation marks omitted).
[16] “The fact that he did not adjust himself during staff meetings or other times when males were present suggested that this adjustment was a deliberate show of male dominance rather than a gesture of comfort.” Id.
EMPLOYER’S EVIDENCE:
[17] “When Ward fired Mikkelsen, he told her that it’s not working out.” Id. at 533 (internal citation and quotation marks omitted).
[18] “Ward wrote a memo to the Board, detailing Mikkelsen’s alleged history of disruptive and insubordinate behavior.” Id.
[19] “Mikkelsen’s own testimony supports the inference that she and Ward had a dysfunctional professional relationship.” Id.
EMPLOYER’S CORRECTIVE ACTION POLICY (“POLICY”):
[20] THE POLICY’S DISCRETIONARY LANGUAGE IN DETERMINING CORRECTIVE OUTCOMES: “[T]he District may take the corrective action it decides is appropriate under the circumstances, which may involve any one or combination of the steps identified below, up to and including immediate discharge without prior corrective action or notice.” Id. at 542 (alteration in original) (parenthesis omitted). “The District does not promise employees a specific formula of corrective action will be followed in every instance.” Id. (alteration in original) (parenthesis omitted).
[21] THE TACIT PROVISION: “[A]lthough the [policy] provisions … suggest the district has broad discretion in taking any number of corrective actions, they do not state that the district may impose corrective action without cause.” Id.
[22] THE POLICY’S COMPULSORY LANGUAGE IN IMPOSING CORRECTIVE ACTION: “Near the beginning of the [corrective-action] policy, under ‘Employee Rights,’ the policy provides that ‘Corrective action must be administered with due consideration of, and respect for, employee rights and expectations, whether those rights and expectations derive from employment policies, operation of law, or contract.'” Id. (internal citation omitted) (emphasis in original).
[23] DISCHARGE IS FORM OF CORRECTIVE ACTION: “Discharge is included in the policy’s list of the different forms of corrective action.” Id.
[24] THE POLICY’S SECTION REGARDING DISCHARGE: “Discharge is permitted ‘in cases of major offenses, repeated or uncorrected minor or intermediate offenses after at least one written warning, continued performance deficiencies (previously identified in a written warning), or unacceptable responses to corrective action by the employee.'” Id. at 543 (internal citation omitted).
[25] THE POLICY’S SECTION DESCRIBING CIRCUMSTANCES FOR DISCHARGE: UNION REPRESENTATION: “Employees are entitled to union representation during any meeting related to disciplinary action.” Id.
[26] THE POLICY’S SECTION DESCRIBING CIRCUMSTANCES FOR DISCHARGE: GENERAL-MANAGER REVIEW: “Supervisors must review disciplinary action with the general manager, ‘particularly when especially severe corrective action, such as suspension and/or discharge, is under consideration.'” Id. (internal citation omitted).
[27] THE POLICY’S SECTION DESCRIBING CIRCUMSTANCES FOR DISCHARGE: DOCUMENTATION: “Discharge decisions ‘should be documented by the employee’s direct supervisor in a memorandum, which identifies the reason(s) for the termination, the previous attempts to correct the situation, if any, and the terms of the termination.'” Id. (internal citation omitted).
[28] THE POLICY’S SECTION DESCRIBING CIRCUMSTANCES FOR DISCHARGE: BOARD REVIEW: “Discharge may be subject to review by the Board.” Id. (internal citation omitted).
[29] THE POLICY’S DISCLAIMER: “[T]he [corrective action] policy provides that ‘[t]he rules set out here are intended only as guidelines, and do not give any employee a right to continued employment or any particular level of corrective action.'” Id. at 541 (second alteration in original) (internal citation omitted).
Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516 (Wash. 2017) (internal citations omitted).
GENERAL RULES SECTION: The following section provides 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. Employment Discrimination: Circumstantial Evidence; and
3. Employment Contracts.
1. STANDARD OF REVIEW
DE NOVO: “We review a trial court’s grant of summary judgment de novo.” Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 526 (Wash. 2017) (citing Camicia v. Howard S. Wright Constr. Co., 179 Wn.2d 684, 693, 317 P.3d 987 (2014)). ”
NO GENUINE ISSUE OF MATERIAL FACT: “Summary judgment is proper 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)).
LIGHT MOST FAVORABLE TO NONMOVING PARTY: “We consider all facts and reasonable 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. EMPLOYMENT DISCRIMINATION: CIRCUMSTANTIAL EVIDENCE
(A) WASHINGTON LAW AGAINST DISCRIMINATION
DISCHARGE BASED ON PROTECTED CHARACTERISTICS PROHIBITED: “WLAD prohibits employers from discharging any employee on the basis of a protected characteristic, including age and gender.” Id. at 526 (citing RCW 49.60.180(2)).
DIRECT EVIDENCE IS RARE: “But [d]irect, ‘smoking gun’ evidence of discriminatory animus is rare, since [t]here will seldom be eyewitness testimony as to the employer’s mental processes.” Id. (citing Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 179, 23 P.3d 440 (2001)) (alterations in original) (internal citation and quotation marks omitted).
CIRCUMSTANIAL, INDIRECT, INFERENTIAL EVIDENCE ALLOWED: “Accordingly, we have repeatedly emphasized that plaintiffs may rely on circumstantial, indirect, and inferential evidence to establish discriminatory action.” Id. (internal citation omitted). “[I]n discrimination cases it will seldom be otherwise.” Id. (internal citation and quotation marks omitted).
WA ADOPTS EVIDENTIARY BURDEN-SHIFTING SCHEME: “Because intentional discrimination is difficult to prove, we have adopted the evidentiary burden-shifting scheme announced in McDonnell Douglas.” Id. at 526-27 (referencing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 362, 753 P.2d 517 (1988)).
(B) MCDONNELL DOUGLAS FRAMEWORK
POLICY BEHIND MCDONNELL DOUGLAS FRAMEWORK: “The shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the plaintiff [has] his [or her] day in court despite the unavailability of direct evidence.” Id. at 527 (alterations in original) (internal citations and quotation marks omitted).
(1) A Three-Step Process
The McDonnell Douglas framework has three steps:
Step 1: Prima Facie Case
“First, the plaintiff must make a prima facie case of discrimination[.]” Id. at 527 (internal citation omitted).
DISPARATE TREATMENT BASED ON TERMINATION OF EMPLOYMENT: THE PRIMA FACIE CASE: A prima facie case of disparate treatment based on termination of employment requires the plaintiff to “show[] that[:]
[] 1) she was within a statutorily protected class,
[] 2) she was discharged by the defendant,
[] 3) she was doing satisfactory work, and
[] 4) after her discharge, the position remained open and the employer continued to seek applicants with qualifications similar to the plaintiff.
Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Grimwood, 110 Wn.2d at 362, 753 P.2d 517)) (paragraph formatting added).
REBUTTABLE PRESUMPTION OF DISCRIMINATION: “If the plaintiff establishes a prima facie case, it creates a rebuttable presumption of discrimination.” Id. (citing Scrivener v. Clark Coll., 181 Wn.2d 439, 446, 334 P.3d 541 (2014)).
Step 2: Legitimate Nondiscriminatory Reason
“Second, the burden shifts to the defendant, who must articulate a legitimate, nondiscriminatory reason for the adverse employment action.” Id. at 527 (citing Scrivener, 181 Wn.2d at 446) (internal quotation marks omitted).
1) “The employer need not persuade the court that it was actually motivated by the proffered reasons.” Id. at 533 (internal citation and quotation marks omitted).
2) “The employer’s burden is merely one of production, rather than persuasion.” Id. (internal citation omitted).
3) “The employer need only introduce evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action.” Id. (internal citation omitted) (emphasis in original).
Step 3: Pretext
“Third, if the defendant meets this burden, the plaintiff must produce sufficient evidence showing that the defendant’s alleged nondiscriminatory reason for the adverse employment action was a pretext.” Id. at 527 (citing Scrivener, 181 Wn.2d at 446) (internal quotation marks omitted).
SATISFYING THE PRETEXT PRONG: “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. (citing Scrivener, 181 Wn.2d at 446-47) (internal quotation marks omitted) (emphasis added).
NO NEED TO DISPROVE EACH REASON: “An employee does not need to disprove each of the employer’s articulated reasons to satisfy the pretext burden of production.” Id. at 534 (internal citation omitted). “This is because [a]n employer may be motivated by multiple purposes, both legitimate and illegitimate, when making employment decisions and still be liable.” Id. (alteration in original) (internal citation omitted) .
(2) Elements Are Not Absolutes
“[T]he McDonnell Douglas elements are not absolutes and … were not intended to be rigid, mechanized, or ritualistic.” Id. at 532 (internal citations and quotation marks omitted).
(3) Summary Judgment
SELDOM APPROPRIATE IN EMPLOYMENT DISCRIMINATION CASES: “Summary judgment for an employer is seldom appropriate in employment discrimination cases because of the difficulty of proving discriminatory motivation.” Id. at 527-28 (citing Scrivener, 181 Wn.2d at 445).
TRIER OF FACT MUST DETERMINE TRUE MOTIVATION: “When the record contains reasonable but competing inferences of both discrimination and nondiscrimination, the trier of fact must determine the true motivation.” Id. at 528 (citing Scrivener, 181 Wn.2d at 445) (internal citation omitted).
OVERCOMING SUMMARY JUDGMENT: “To overcome summary judgment, the plaintiff needs to show only that a reasonable jury could find that discrimination was a substantial factor in the employer’s adverse employment action.” Id. (citing Mackay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 310, 898 P.2d 284 (1995)).
3. EMPLOYMENT CONTRACTS
(A) AT-WILL EMPLOYMENT
INDEFINITE EMPLOYMENT CONTRACTS TERMINABLE AT WILL: “Generally, an employment contract indefinite in duration is terminable at will.” Id. at 540 (citing Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 223, 685 P.2d 1081 (1984)).
(B) EXCEPTION TO THE AT-WILL DOCTRINE: PROMISES OF SPECIFIC TREATMENT IN SPECIFIC SITUATIONS
“[U]nder certain circumstances, employers may be obligated
to act in accordance with policies as announced in handbooks issued to their employees.” Id. at 539-40 (internal citations and quotation marks omitted).
(1) Example
“[I]f the employer has made promises of specific treatment in specific situations on which the employee justifiably relies, those promises are enforceable and may modify an employee’s at-will status.” Id. at 540 (internal citation omitted).
(2) Elements of the Theory
“Under this theory, [a plaintiff] … must show [the following:]
[a)] … that a statement (or statements) in an employee manual or handbook or similar document amounts to a promise of specific treatment in specific situations, …
[b)] that the employee justifiably relied on the promise, and …
[c)] that the promise was breached.
Id. (internal citation and quotation marks omitted) (paragraph formatting added).
(3) The Crucial Question
“[T]he crucial question is whether the employee has a reasonable expectation the employer will follow the discipline procedure, based upon the language used in stating the procedure and the pattern of practice in the workplace.” Id. (internal citation omitted) (alteration in original).
(4) Questions of Fact
“[W]hether an employment policy manual issued by an employer contains a promise of specific treatment in specific situations, whether the employee justifiably relied on the promise, and whether the promise was breached are questions of fact.” Id. (alteration in original) (internal quotation marks and citation omitted).
Summary Judgment Only Proper if Reasonable Minds Could Not Differ
“Therefore, summary judgment is proper only if reasonable minds could not differ in resolving these questions.” Id. (internal citation omitted).
(5) Ambiguous Discipline Policies Create Issue of Fact
“The Court of Appeals has held that ambiguous discipline policies create an issue of fact as to whether the employer made a binding promise to follow certain discipline procedures.” Id. at 543 (internal citations omitted).
(6) Summary Judgment May Not Be Appropriate When Discretionary Language Negated by Other Representations
“[T]he presence of discretionary language may not be sufficient for summary judgment when other representations negate that language.” Id. at 544 (referencing, e.g., Swanson v. Liquid Air Corp., 118 Wn.2d 512, 532, 826 P.2d 664 (1992) (“We reject the premise that this disclaimer can, as a matter of law, effectively serve as an eternal escape hatch for an employer who may then make whatever unenforceable promises of working conditions it is to its benefit to make.”)) (internal quotation marks omitted).
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: Is the replacement element required to establish a prima facie case of discrimination under the McDonnell Douglas framework?
The requirements for both the McDonnell Douglas Framework and the prima facie case have been established, above, in the General Rules section.
(A) REPLACEMENT ELEMENT NOT ESSENTIAL TO ESTABLISHING A PRIMA FACIE CASE OF DISCRIMINATION UNDER MCDONNELL DOUGLAS
(1) Washington Courts
REPLACEMENT ELEMENT TYPICALLY REQUIRED. “To establish a prima facie case of discrimination, Washington courts have held that plaintiffs must prove that they were replaced by someone outside of their protected group— the replacement element.” Id. at 528 (internal citations omitted).
ERRONEOUS APPLICATION. “A review of federal authority reveals that the replacement element may have been erroneously included in Washington courts’ application of the McDonnell Douglas framework.” Id. at 529.
(2) Federal Courts
REPLACEMENT ELEMENT NOT REQUIRED: “[N]o United States Supreme Court authority, including McDonnell Douglas, requires the replacement element.” Mikkelsen, 189 Wn.2d at 529. “Nearly every federal court addressing the issue has held that a discharged employee need not prove she was replaced by someone outside her protected class in order to establish a prima facie case of discrimination under McDonnell Douglas.” Mikkelsen, 189 Wn.2d at 530 (internal citations omitted).
(2) Perry v. Woodward (10th Cir. 1999)
INCONSISTENCY REGARDING THE ADDITIONAL-FACT REQUIREMENT. “As the Tenth Circuit Court of Appeals noted in Perry[][v. Woodward, 199 F.3d 1126 (10th Cir. 1999),] although most federal courts do not preclude a plaintiff from meeting the prima facie burden when the replacement or new hire shares the protected attribute, some still require an additional fact giving rise to an inference of discrimination.” Mikkelsen, 189 Wn.2d at 531 (citing Perry, 199 F.3d at 1138) (internal quotation marks omitted) (emphasis added).
PERRY REJECTS ADDITIONAL-FACT REQUIREMENT. “The Perry court rejected … [the additional-fact requirement] because it leads to uncertainty in the trial courts.” Mikkelsen, 189 Wn.2d at 531.
NEED ONLY SHOW THAT POSITION WAS NOT ELIMINATED. “Instead, the First, Second, and Tenth Circuits have dispensed with the replacement element and held that a plaintiff need only show that her position was not eliminated.” Id. (citing Perry, 199 F.3d at 1138).
(3) “We agree with Perry“
WA STATE SUPREME COURT AGREES WITH PERRY. “We agree with Perry and clarify that the McDonnell Douglas framework does not require a plaintiff to prove that she was replaced by a person outside her protected group to establish a prima facie case of discrimination.” Id. at 532.
PROOF REQUIRED: EMPLOYER SOUGHT REPLACEMENT WITH QUALIFICATIONS SIMILAR TO DISCHARGED PLAINTIFF. “[T]he proof required is that the employer sought a replacement with qualifications similar to his own, thus demonstrating a continued need for the same services and skills.” Id. (internal citations omitted).
(4) Disparate Treatment Based on Termination
THE PRIMA FACIE CASE. “[T]he original framework articulated in McDonnell Douglas and other federal authority … requires only that[:]
[a)] a plaintiff prove membership in a protected class,
[b)] termination from a job for which she was qualified, and …
[c)] the employer continued to seek candidates for the position.
Id.
(B) A DISCHARGED EMPLOYEE’S REPLACEMENT MAY BE RELEVANT TO STEPS 2 AND 3 OF MCDONNELL DOUGLAS FRAMEWORK
“This does not mean that the discharged employee’s replacement is irrelevant.” Id. “After establishing a prima facie case, the attributes of a successor employee may be relevant to the second or third steps under the McDonnell Douglas framework.” Id.
ISSUE #2: Can Mikkelsen show a genuine issue of material fact as to whether the discrimination was a substantial factor in her dismissal?
PARTIES AGREE MIKKELSEN ESTABLISHED A PRIMA FACIE CASE (1ST ELEMENT OF MCDONNELL DOUGLAS): “The parties agree with the Court of Appeals’ rejection of the replacement element, and therefore they seem to agree that Mikkelsen satisfied her initial burden by establishing a prima facie case of discrimination.” Id. at 533.
PARTIES DISPUTE 2ND AND 3RD STEPS OF MCDONNELL DOUGLAS: “They dispute the second and third steps under McDonnell Douglas — whether the district presented a legitimate, nondiscriminatory reason for Mikkelsen’s discharge and whether Mikkelsen presented sufficient evidence showing that the district’s proffered reason is pretext.” Id.
(A) GENDER: MIKKELSEN DEMONSTRATED AN ISSUE OF MATERIAL FACT AS TO WHETHER GENDER DISCRIMINATION WAS A SUBSTANTIAL FACTOR IN HER DISMISSAL
(1) McDonnell Douglas Framework
See General Rules, Section III(2)(B), supra.
Step 2: Legitimate Nondiscriminatory Reason: The Employer Met Burden
Based upon the employer’s evidence–as established in the above Case Summary, Section II–the employer “satisfied its burden here.” Id. at 533.
Step 3: Pretext: Employee Mikkelsen Met Burden
“The evidence Mikkelsen presented, taken together, demonstrates a genuine dispute of material fact as to whether the breakdown in communication between Mikkelsen and Ward occurred because she is a woman.” Id. at 535.
(2) The Case Must Go to Jury
“Where there are reasonable but competing inferences of both discrimination and nondiscrimination, it is the jury’s task to choose between such inferences[] — not the court’s.” Id. at 536 (internal citation omitted).
The Reasonable But Competing Inferences
a) “From this record, a reasonable jury could believe that Ward fired Mikkelsen because she was an assertive woman who challenged his gender stereotypes[.]” Id. at 535-36.
b) Alternatively, “[T]he jury could believe that Ward harbored no gender bias and fired Mikkelsen simply because their personalities and management styles clashed.” Id. at 536
c) “Either inference is reasonable.” Id.
d) The Court reversed summary judgment dismissal of Mikkelsen’s gender discrimination claim. See id.
(B) AGE: MIKKELSEN FAILED TO DEMONSTRATE AN ISSUE OF MATERIAL FACT AS TO WHETHER AGE DISCRIMINATION WAS A SUBSTANTIAL FACTOR IN HER DISMISSAL
(1) “We affirm summary judgment dismissal of Mikkelsen’s age discrimination claim because Mikkelsen presented almost no evidence of age discrimination.” Id. at 536.
a) “Mikkelsen testified that Ward once referred to long term employees as ‘old and stale’ and that Ward had a ‘fixation’ on a 72-year-old employee.” Id. at 536 (internal citation omitted).
b) “But Mikkelsen’s testimony suggests that Ward was simply marveling that some employees had worked for the same employer for so long.” Id.
c) “Mikkelsen presents no evidence that Ward treated older employees differently or that her age played a role in Ward’s decision to fire her.” Id.
d) “The trial court properly concluded that age discrimination was not a substantial factor in Ward’s decision to fire Mikkelsen.” Id.
ISSUE #3: Can Mikkelsen show a genuine issue of material fact as to whether the corrective action policy modified her at-will employment status?
“Mikkelsen … argues her discharge violated the district’s corrective action policy.” Id. at 536. The rules associated with this issue are contained under the General Rules, Section III(3) (Employment Contracts), supra.
(A) MIKKELSEN CAN SHOW A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER THE CORRECTIVE ACTION POLICY (“POLICY”) MODIFIED HER AT-WILL EMPLOYMENT STATUS
AMBIBUOUS DISCIPLINE POLICIES CREATE ISSUE OF FACT: “The Court of Appeals has held that ambiguous discipline policies create an issue of fact as to whether the employer made a binding promise to follow certain discipline procedures.” Id. at 543 (internal citations omitted).
(1) The Policy Is Ambiguous: It Could Be Read as Maintaining Discretion in Implementing Disciplinary Procedures While Both Requiring Fair Treatment During Disciplinary Proceedings and Establishing a For-Cause Requirement for Discharge
CORRECTIVE ACTION POLICY IS DISCRETIONARY: “The corrective action policy here contains many provisions suggesting the district has broad discretion in implementing disciplinary procedures.” Id. at 540 (emphasis added); see also Section II (Case Summary: Employer’s Corrective Action Policy), supra.
CORRECTIVE ACTION POLICY IS ALSO COMPULSORY: “But these provisions are at odds with other parts of the policy that seem to promise fair treatment and arguably establish a for-cause requirement for discharge.” Id. (emphasis added); see also Section II (Case Summary: Employer’s Corrective Action Policy), supra.
CORRECTIVE ACTION POLICY IS AMBIGUOUS: Thus, “the policy here is ambiguous because the discretionary language is inconsistent with other provisions in the policy that suggest employees may not be discharged without cause.” Id. at 544; see also Section II (Case Summary: Employer’s Corrective Action Policy), supra.
(2) The Employer’s Disclaimer Is Ambiguous
EMPLOYER’S ARGUMENT: “The district contends the policy contains a disclaimer negating any inference that the policy constitutes a promise for specific treatment in disciplinary proceedings.” Id. at 541; see also Section II (Case Summary: Employer’s Corrective Action Policy), supra.
COURT OF APPEALS’ ANALYSIS: The Court of Appeals relied on Kuest, and held that the employer’s disclaimer in this case “prevented the policy from modifying Mikkelsen’s at-will status.” Id. (referencing Kuest v. Regent Assisted Living, Inc., 111 Wn. App. 36, 43 P.3d 23 (Div. 1 2002)).
SUPREME COURT’S ANALYSIS: The Court contrasted the Kuest disclaimer provision to that in Mikkelsen, and found that Kuest’s was far more explicit:
The alleged disclaimer [in Mikkelsen] … is much more ambiguous. One could reasonably read the provision as stating that the district may, within its discretion, apply any corrective action in a given situation, up to and including discharge. But[, unlike the case in Kuest,] the [Mikkelsen] provision does not suggest that corrective action may be arbitrary, nor does it emphasize that employees subject to the policy remain at will.”
Id.; see also Section II (Case Summary: Employer’s Corrective Action Policy), supra.
(B) MIKKELSEN’S CLAIM SURVIVES SUMMARY JUDGMENT
THE CORRECTIVE ACTION POLICY IS AMBIGUOUS. “[T]he policy is ambiguous and could plausibly be read as modifying Mikkelsen’s at-will status.” Id. at 540.
THE AMBIGUITY CREATES GENUINE ISSUE OF MATERIAL FACT SUFFICIENT TO SURVIVE SUMMARY JUDGMENT. “Because the question of whether the policy constitutes a promise for specific treatment is a question of fact, and because the summary judgment standard requires that we view all factual inferences in the light most favorable to Mikkelsen, we think the ambiguity in the policy creates a genuine issue of material fact sufficient to survive summary judgment.” Id. at 540-41.
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