Tag: Sex Discrimination

Crabtree v. Jefferson Cnty. Pub. Hosp. Dist. No. 2, 500 P.3d 203 (Wash. App. 2021)

Crabtree v. Jefferson Cnty. Pub. Hosp. Dist. No. 2, 500 P.3d 203 (Wash. App. 2021)
Crabtree v. Jefferson Cnty. Pub. Hosp. Dist. No. 2, 500 P.3d 203 (Wash. App. 2021)

In Crabtree v. Jefferson Cnty. Pub. Hosp. Dist. No. 2, 500 P.3d 203 (Wash. App. 2021), Defendant Jefferson Healthcare terminated Plaintiff Crabtree’s employment following her pregnancy. Consequently, Crabtree filed a sex discrimination lawsuit against Jefferson Healthcare, but the trial court granted summary judgment dismissing her claims of sex discrimination. Crabtree appealed.

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Court Slips: Snapshot

SNAPSHOT: This is a case summary of Crabtree v. Jefferson Cnty. Pub. Hosp. Dist. No. 2, 500 P.3d 203 (Wash. App. 2021). It contains multiple sections. The following section is a snapshot of key data including case citation, description, categories, and impact on Legal Trees. (TIP: Look for the green button throughout this article for more helpful information.)

I.  SNAPSHOT

case citation

Crabtree v. Jefferson Cnty. Pub. Hosp. Dist. No. 2, 500 P.3d 203 (Wash. App. 2021)

DESCRIPTION

“Jillian Crabtree appeals the trial court’s order granting summary judgment dismissing her claims of sex discrimination against her employer, Jefferson Healthcare.” Crabtree, 500 P.3d at 203.

“Jefferson Healthcare fired Crabtree after she became pregnant.” Id.

“On appeal, Crabtree argues that there is a genuine issue of material fact as to whether (1) Jefferson Healthcare’s stated reasons for her termination were a pretext for discrimination, and (2) Jefferson Healthcare was substantially motivated by Crabtree’s pregnancy when it made the decision to discharge her. Id.

“Because issues of material fact exist regarding both these issues, we reverse the order granting summary judgment and remand for further proceedings.” Id.

CATEGORIES

(1) Discriminatory Discharge (Sex/Pregnancy)

(2) Evidence of Pretext

(3) Evidence of Discrimination as a Motivating Factor

LEGAL TREEs

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Court Slips: Case Summary SectionCASE SUMMARY SECTION: The following section contains material facts and evidence that the Court considered in this case. 

II.  CASE SUMMARY

Material Facts & Evidence (30 Items):

[1]  “Crabtree started working at Jefferson Healthcare as the manager of patient access services in May 2018.” Crabtree v. Jefferson Cnty. Pub. Hosp. Dist. No. 2, 500 P.3d 203  (Wash. App. 2021).

[2]  “Crabtree’s direct supervisor was Jennifer Goodwin, who was in turn supervised by Hilary Whittington.” Id. at 213.

[3]  “About seven months after Crabtree started her position, she received her first performance evaluation on November 26, 2018. ” Id. at 207.

[4]  “Goodwin evaluated Crabtree as ‘meeting expectations’ in most categories.” Id. at 214.

[5]  “Crabtree told Whittington that she was pregnant in December of 2018.” Id. at 208.

[6]  “When Whittington learned of Crabtree’s pregnancy, she remarked ‘Wow. Poor Jen. She’s going to be without a whole staff this spring/summer.'” Id. at 214. (internal citation omitted).

[7]  “[W]hen Crabtree told Goodwin that she was pregnant, Goodwin asked if Crabtree would be taking leave, and Crabtree said she would[][;] Goodwin then followed up by asking if Crabtree planned on coming back after her leave, and Crabtree responded “yes[]”[;] Goodwin then asked if Crabtree was interested in returning to a lesser role, to which Crabtree responded ‘No. I like my job.'” Id. (internal citation omitted).

[8]  “Goodwin was supervising four managerial positions, one of which was vacant when Crabtree announced her pregnancy.” Id.

[9]  “Straughn-Morse was … [another] manager on Goodwin’s team who was pregnant at the same time as Crabtree.” Id. at 211.

[10]  “During a staff meeting, Whittington noted that Crabtree and Straughn-Morse were pregnant and that Jefferson Healthcare expected to be short-staffed for the spring and summer.” Id. at 214.

[11]  “In February 2019, Crabtree met with HR to discuss her options for taking maternity leave.” Id. at 209

[12]  “Crabtree was placed on a PIP only a day after she discussed maternity leave with HR.” Id. at 214

[13]  “Only a few weeks before Goodwin placed Crabtree on a PIP, Goodwin evaluated Crabtree as ‘meeting expectations’ in most categories.” Id.

[14]  “Goodwin informed … [Crabtree] that a good faith effort to comply with the PIP was enough and … had been giving her positive feedback.” Id. at 213.

[15]  “More than half way through the PIP and following Crabtree’s second to last checkpoint meeting on March 5, Goodwin told Crabtree that she was ‘doing well’ on all of her goals on the PIP.” Id.

[16]  “Goodwin then expressed her lack of confidence in Crabtree’s ability to complete the PIP, and she urged Crabtree to consider lesser roles.” Id. at 214.

[17]  “Crabtree chose to continue in her role and was terminated [on March 15,] before the PIP period ended.” Id.

[18]  “At the same time that Crabtree was placed on a PIP, Straughn-Morse, the other pregnant manager, assumed a lesser role.” Id.

[19]  “After Straughn-Morse became pregnant, Goodwin gave Straughn-Morse the responsibility of managing an additional team with no additional pay, and she informed her that the added responsibility was not optional if she wanted to continue in her role.” Id.

[20]  “Straughn-Morse then started at a lesser role with a corresponding reduction in pay and went on maternity leave shortly after.” Id.

[21]  “[B]oth pregnant women on Goodwin’s team lost their managerial roles after becoming pregnant.” Id.

[22]  “Jefferson Healthcare relied on evidence of Crabtree’s PIP and November evaluation as the reason for her termination.” Id. 213.

[23]  “In Crabtree’s termination letter, Goodwin claimed that she terminated Crabtree because she failed to complete or start her PIP goals.” Id.

[24]  “[T]he termination letter stated that Crabtree had not started on a SWOT analysis or an impact analysis[.]” Id.

[25]  “[I]n the termination letter, Goodwin wrote that the registration staffing plan ‘had not been started.'” Id. (internal citation omitted).

[26]  “However, Crabtree had already completed steps towards achieving that goal[ ][;] Her work on that goal was put on pause because Jefferson Healthcare was imposing new duties on the registration staff, so Crabtree had to stop working because the change directly affected her ability to implement a new registration staffing plan because it ‘significantly change[d] how many … interactions the registrants have.'” Id. (last two alterations in original) (internal citation omitted).

[27]  Moreover, “the PIP did not require Crabtree to ‘draft’ a staffing plan or an impact analysis[ ][;] [i]t simply required her to learn Epic, define productivity expectations, and schedule staff meetings.” Id.

[28]  “Crabtree filed a lawsuit against Jefferson Healthcare alleging that Jefferson Healthcare terminated her because of her pregnancy in violation of the Washington Law Against Discrimination (WLAD).” Id. at 211.

[29]  “After discovery, Jefferson Healthcare moved for summary judgment, which the trial court granted.” Id. 

[30]  “Crabtree appeals the trial court’s order granting summary judgment dismissing her claims of sex discrimination against Jefferson Healthcare.” Id. 

Crabtree v. Jefferson Cnty. Pub. Hosp. Dist. No. 2, 500 P.3d 203 (Wash. App. 2021).

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Court Slips: General Rules Section

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. Summary Judgment: Standard of Review
2. Washington Law Against Discrimination: Discriminatory Discharge
3. Burden-Shifting Framework (McDonnell Douglas)
4. Establishing Pretext

1.  SUMMARY JUDGMENT: STANDARD OF REVIEW

(a) DISMISSALS REVIEWED DE NOVO

The Court “review[s] dismissals on summary judgment de novo.” Crabtree, 500 P.3d at 211 (citing Frausto v. Yakima HMA, LLC , 188 Wash.2d 227, 231, 393 P.3d 776 (2017)).

(b) EVIDENCE & REASONABLE INFRENCES REVIEWED IN LIGHT MOST FAVORABLE TO NONMOVING PARTY

The Court “review[s] all evidence and reasonable inferences in the light most favorable to the nonmoving party[.]” Id. (citing Keck v. Collins, 184 Wash.2d 358, 368, 357 P.3d 1080 (2015)).

(c) AFFIRMING SUMMARY JUDGMENT

The Court “affirm[s] an order granting summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Id. (citing CR 56(c); Keck, 184 Wash.2d at 370, 357 P.3d 1080).

(d) DENYING SUMMARY JUDGMENT

COMPETING INFERENCES OF BOTH DISCRIMINATION AND NONDISCRIMINATION: When the record contains “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 214 (citing Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas County, 189 Wash.2d 516, 536, 404 P.3d 464 (2017)) (internal citation and quotation marks omitted).

GENUINE ISSUE OF MATERIAL FACT: Thus: “A motion for summary judgment must be denied if the nonmoving party … shows specific facts that show a genuine issue of material fact.” Id. at 212 (citing Zonnebloem, LLC v. Blue Bay Holdings, LLC, 200 Wash. App. 178, 183, 401 P.3d 468 (2017)).

HOW TO DETERMINE WHEN A GENUINE ISSUE OF FACT EXISTS: “A genuine issue of fact exists when reasonable minds could disagree on the facts controlling the outcome of the case.” Id. (citing Sutton v. Tacoma Sch. Dist. No. 10, 180 Wash. App. 859, 864-65, 324 P.3d 763 (2014)).

HOW EMPLOYEES MAY AVOID SUMMARY JUDGMENT: “To avoid summary judgment, the employee must show only that a reasonable jury could find that discrimination was a substantial factor in the employer’s adverse employment action.” Id. (citing Mikkelsen, 189 Wash.2d at 528, 404 P.3d 464).

(e) RARELY APPROPRIATE IN DISCRIMINATORY-DISCHARGE CASES

“Summary judgment for an employer is rarely appropriate in a discriminatory discharge case because of the difficulty of proving discriminatory motivation.” Id. at 212 (citing Mikkelsen, 189 Wash.2d at 527, 404 P.3d 464) (internal quotation marks omitted).

2.  WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): DISCRIMINATORY DISCHARGE

“The WLAD bars employers from discharging an employee because of certain characteristics, including sex.” Crabtree, 500 P.3d at 211 (citing RCW 49.60.180(2)).

(a) SEX DISCRIMINATION INCLUDES PREGNANCY DISCRIMINATION

“The ban on discrimination on the basis of sex includes discrimination on the basis of pregnancy.” Id. (citing WAC 162-30-020).

(b) DISCRIMINATORY DISCHARGE FALLS UNDER RCW 49.60.180(2)

“A violation of RCW 49.60.180(2) supports a discriminatory discharge claim.” Id. (citing Mikkelsen, 189 Wash.2d at 526, 404 P.3d 464) (hyperlink added)).

3. BURDEN-SHIFTING FRAMEWORK

EMPLOYEES MAY RELY ON CIRCUMSTANTIAL, INDIRECT, AND INFERENTIAL EVIDENCE TO ESTABLISH DISCRIMINATION CLAIMS: “Because direct evidence of discriminatory intent is rare, an employee may rely on circumstantial, indirect, and inferential evidence to establish discriminatory action.” Crabtree, 500 P.3d at 211 (citing Mikkelsen, 189 Wash.2d at 526, 404 P.3d 464) (internal quotation marks omitted).

EMPLOYEES RELYING ON CIRCUMSTANTIAL, INDRECT, OR INFERENTIAL EVIDENCE TO PROVE DISCRIMINATION MAY USE THE 3-STEP, BURDEN-SHIFTING FRAMEWORK: “Where the employee lacks direct evidence, Washington has adopted the three step evidentiary burden shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) for discriminatory discharge claims.” Id. (citing Scrivener v. Clark Coll., 181 Wash.2d 439, 445-46, 334 P.3d 541 (2014)).

(a) STEP #1: Employee must establish a prima facie claim

(EDITOR’S NOTE: there are different formulations of the prima facie case depending on both the law in question and legal theory pursued. In this case, the plaintiff pursued a claim of discriminatory discharge under the Washington Law Against Discrimination, and the following rule reflects the same.)

“First, [under the burden-shifting framework,] an employee must make a prima facie case of discriminatory discharge by showing that she was

(1) within a statutorily protected class,

(2) discharged by the defendant, and

(3) doing satisfactory work.

Id. (citing Mikkelsen , 189 Wash.2d at 527, 404 P.3d 464) (emphasis and paragraph formatting added). “Where the employee establishes a prima facie case, a rebuttable presumption of discrimination exists. Id. at 211-12 (citing Mikkelsen, 189 Wash.2d at 527, 404 P.3d 464).

(b) STEP #2: Employer must articulate a legitimate, nondiscriminatory reason

“Second, the burden shifts to the employer, who must articulate a legitimate, nondiscriminatory reason for the discharge.” Id. at 212 (citing Mikkelsen, 189 Wash.2d at 527, 404 P.3d 464) (internal citation and quotation marks omitted).

NOTE: “The employer is not required to persuade the court that it actually was motivated by the nondiscriminatory reason, the employer need only show that the employer’s evidence, if taken as true would permit the conclusion that there was a nondiscriminatory reason.” Id. (citing Mikkelsen, 189 Wash.2d at 533, 404 P.3d 464).

(c) STEP #3: Employee must show employer’s reason is pretext

“Third, if the employer meets this burden, the employee must produce sufficient evidence showing that the employer’s alleged nondiscriminatory reason for the discharge was a pretext.” Crabtree, 500 P.3d at 212 (citing Mikkelsen, 189 Wash.2d at 527, 404 P.3d 464).

TWO METHODS TO SATISFY 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 Mikkelsen, 189 Wash.2d at 527, 404 P.3d 464) (internal citation and quotation marks omitted) (emphasis and paragraph formatting added).

(1) FIRST METHOD: Show the defendant’s reason is pretextual

“Employees may satisfy the pretext prong of the [burden shifting] framework by offering sufficient evidence to create a genuine issue of material fact … that the employer’s articulated reason for its action is pretextual.” Crabtree, 500 P.3d at 212 (citing Scrivener, 181 Wash.2d at 441, 334 P.3d 541) (internal quotation marks omitted) (alteration in original). “The ways in which an employee can show that a stated reason for termination was pretext for discrimination include, but are not limited to,

[»] that the reason has no basis in fact,

[»] it was not really a motivating factor for the decision …[,]

[»] it lacks a temporal connection to the decision[,] [or]

[»] [it] was not a motivating factor in employment decisions for other employees in the same circumstances.

Id. (citing Scrivener, 181 Wash.2d at 447-48, 334 P.3d 541) (internal citations and quotation marks omitted) (sixth alteration in original) (emphasis and paragraph formatting added).

(2) SECOND METHOD: Show that although the employer’s stated reason is legitimate, discrimination nevertheless was a substantial factor motivating the employer

A discriminatory-discharge plaintiff “can alternatively meet … [their] burden to show pretext by showing that discrimination was a substantial motivating factor for … [their] termination.” See Crabtree, 500 P.3d at 214 (citing Mikkelsen, 189 Wash.2d at 527, 404 P.3d 464).

PLAINTIFF MAY USE EVIDENCE OF EMPLOYER TREATMENT OF OTHER EMPLOYEES TO SHOW MOTIVE OR INTENT FOR HARASSMENT/DISCHARGE: “In an employment discrimination context, our Supreme Court has recognized that evidence of employer treatment of other employees is permissible to show motive or intent for harassment or discharge.” Id. (citing Brundridge v. Fluor Fed. Servs., Inc., 164 Wash.2d 432, 445, 191 P.3d 879 (2008)) (internal quotation marks omitted).

(3) LIMITATIONS

a) EMPLOYEE NOT REQUIRED TO DISPROVE EACH OF EMPLOYER’S REASONS OR PROVE DISCRIMINATION WAS ONLY MOTIVATING FACTOR IN TERMINATION: “An employee does not need to disprove each of the employer’s articulated reasons to satisfy the pretext burden of production.” Crabtree, 500 P.3d at 212 (citing Scrivener, 181 Wash.2d at 447, 334 P.3d 541) (internal quotation marks omitted). “Nor does an employee need to prove that discrimination was the only motivating factor in her termination.” Id. at 212-13 (citing Scrivener, 181 Wash.2d at 447, 334 P.3d 541).

b) EMPLOYER MAY BE MOTIVATED BY BOTH LEGITIMATE AND ILLEGITIMATE PURPOSES AND STILL BE LIABLE UNDER WLAD: “An employer may be motivated by multiple purposes, both legitimate and illegitimate, when making employment decisions and still be liable under the WLAD.” Id. at 213 (citing Scrivener, 181 Wash.2d at 447, 334 P.3d 541) (internal quotation marks omitted).

c) CIRCUMSTANTIAL, INDIRECT, & INFERENTIAL EVIDENCE ENOUGH TO DISCHARGE PLAINTIFF’S BURDEN: “Circumstantial, indirect, and inferential evidence is sufficient to discharge the plaintiff’s burden.” Id. (citing Mikkelsen, 189 Wash.2d at 526, 404 P.3d 464).

d) IF EMPLOYEE PRODUCES EVIDENCE COUNTERING EMPLOYER’S REASONS, CASE MUST BE SUBMITTED TO JURY: “If a plaintiff produces evidence at this [ ] stage to counter the employer’s reasons, the case must be submitted to the jury; if not, the employer is entitled to a dismissal.” Id. (citing Chen v. State, 86 Wash. App. 183, 190, 937 P.2d 612 (1997)) (internal quotation marks omitted) (alteration in original).

e) EMPLOYEE MUST DO MORE THAN EXPRESS OPINION OR MAKE CONCLUSORY STATEMENTS – FACTS MUST BE SPECIFIC & MATERIAL: “To overcome an employer’s summary judgment motion, the employee must do more than express an opinion or make conclusory statements.” Id. (citing Chen, 86 Wash. App. at 190, 937 P.2d 612). “Instead, the facts must be specific and material.” Id. (citing Chen, 86 Wash. App. at 190, 937 P.2d 612).

f) ASSERTION OF GOOD PERFORMANCE TO CONTRADICT THAT OF BAD PERFORMANCE IS NOT ENOUGH: “An employee’s assertion of good performance to contradict the employer’s assertion of poor performance does not give rise to a reasonable inference of discrimination.” Id. (citing Chen, 86 Wash. App. at 191, 937 P.2d 612).

(d) Employee NOT required to show discrimination was the ONLY motivating factor

“The employee is not required to show that discrimination was the only motivating factor for the discharge because an employer’s decision may be based on both legitimate and illegitimate reasons.”  Crabtree, 500 P.3d at 212 (citing Mikkelsen, 189 Wash.2d at 534, 404 P.3d 464).

HOW TO SURVIVE SUMMARY JUDGEMENT: Thus, “To survive summary judgment, the employee need only present evidence sufficient to create a genuine issue of material fact as to whether discrimination was a substantial factor in an adverse employment action, not the only motivating factor.” Id. at 214 (citing Mikkelsen, 189 Wash.2d at 534, 404 P.3d 464) (internal quotation marks omitted).

Court Slips: Issues SectionISSUES 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 sufficient evidence of pretext exist to survive summary judgment?

THE PARTIES AGREE THAT STEPS ONE AND TWO OF THE BURDEN SHIFTING FRAMEWORK ARE MET: “The parties agree, for the purpose of summary judgment, that steps one and two of the burden shifting framework are met. Therefore, … [the Court] analyze[s] only the third step—whether Jefferson Healthcare’s alleged nondiscriminatory reason for the discharge was a pretext.” Crabtree, 500 P.3d at 212 (hyperlink added).

IT IS THE PLAINTIFF’S BURDEN TO SHOW PRETEXT (STEP THREE): “In this step of the burden shifting framework, the employee, Crabtree, bears the burden of showing sufficient facts supporting pretext to survive summary judgment.” Id. (citing Scrivener, 181 Wash.2d at 441, 334 P.3d 541).

(A) YES: Crabtree produced sufficient evidence to create a genuine issue of material fact as to whether the reasons provided by Jefferson Healthcare were pretext for discrimination.

THE RULES: See § III(3)(C) (General Rules: Burden-Shifting Framework: Step 3 – Employee Must Show Employer’s Reason is Pretext), supra. 

(1)  Defendant’s Argument #1

Plaintiff Crabtree Failed to Complete/Start Her PIP Goals.

◊ In this case, “Jefferson Healthcare relied on evidence of Crabtree’s PIP and November evaluation as the reason for her termination.” Crabtree, 500 P.3d at 213. “In Crabtree’s termination letter, Goodwin claimed that she terminated Crabtree because she failed to complete or start her PIP goals.” Id.

a) Plaintiff’s Response

Goodwin Told Plaintiff She Was Doing Well on All Her PIP Goals.

♦ “Crabtree rebuts that evidence by showing that Goodwin informed her that a good faith effort to comply with the PIP was enough and that Goodwin had been giving her positive feedback. More than half way through the PIP and following Crabtree’s second to last checkpoint meeting on March 5, Goodwin told Crabtree that she was ‘doing well’ on all of her goals on the PIP.” Id.

(2) Defendant’s Argument #2

Plaintiff Crabtree failed to start the Registration Staffing Plan; Crabtree was not making progress; Goldwin told Crabtree to continue working on Registration Staffing Plan despite new duties.

◊ “[I]n the termination letter, Goodwin wrote that the registration staffing plan ‘had not been started.'” Id. (internal citation omitted).

◊ “Jefferson Healthcare argues that Crabtree was not actually making progress on the registration plan because she ‘was no closer to actually drafting a Registration Staffing Plan,’ and had only been reviewing data. Id. (internal citation omitted).

◊ “[Jefferson also] … argues that Goodwin told Crabtree to continue working on the registration staffing plan despite the new duties being imposed on the registration staff.” Id.

a) Plaintiff’s Response

Plaintiff had Already completed steps towards completing goal of Starting Registration Staffing Plan; Defendant paused Plaintiff’s efforts; PIP did not require drafting Staffing Plan or Impact Analysis.

♦ “Crabtree had already completed steps towards achieving the goal of starting the registration staffing plan. Her work on that goal was put on pause because Jefferson Healthcare was imposing new duties on the registration staff, so Crabtree had to stop working because the change directly affected her ability to implement a new registration staffing plan because it “significantly change[d] how many … interactions the registrants have.” Id. (internal citation omitted).

♦ Moreover, “the PIP did not require Crabtree to ‘draft’ a staffing plan …. It simply required her to learn Epic, define productivity expectations, and schedule staff meetings.” Id.

(3) Defendant’s Argument #3

Plaintiff Crabtree failed to start a SWOT Analysis or Impact Analysis.

◊ “[T]he termination letter stated that Crabtree had not started on a SWOT analysis or an impact analysis.” Id.

a) Plaintiff’s Response

Plaintiff Was Gathering Necessary Info for SWOT and Impact Analysis; the PIP did not Require Impact Analysis.

♦ “Crabtree testified that she was gathering the information necessary for the SWOT and impact analysis, a necessary step.” Id. 

♦ Moreover, “the PIP did not require Crabtree to ‘draft’ … an impact analysis. It simply required her to learn Epic, define productivity expectations, and schedule staff meetings.” Id.

(4) Court’s Analysis (⇒)

Evidence shows the reasons in the termination letter are not based in fact; Plaintiff does more than just assert her performance was good; a jury could reasonable conclude Plaintiff started working toward her PIP goals.

⇒ “Crabtree introduced evidence to show that the reasons in the termination letter are not based in fact.” Id.

⇒ “These facts are more than just an employee’s assertion that her performance was good. These positive messages during the PIP process undermine Jefferson Healthcare’s assertions about its reasons for terminating Crabtree.” Id.

⇒ Moreover, “A jury could reasonably conclude that Crabtree had, in fact, started working toward her PIP goals.” Id.

∴ CONCLUSION: “Viewing the evidence and inferences in the light most favorable to Crabtree, Crabtree met her burden of producing sufficient evidence to show that a genuine issue of material fact exists as to whether Jefferson Healthcare’s stated reasons for terminating Crabtree were pretext for discrimination.” Id.

(b) COURT’S HOLDING → PLAINTIFF

In this case, the Court “[held] that [Plaintiff] Crabtree produced sufficient evidence to create a genuine issue of material fact as to whether the reasons provided by Jefferson Healthcare were pretext for discrimination.” Crabtree, 500 P.3d at 213-14.

(c)  REVERSED AND REMANDED

 “Because genuine issues of material fact exist, the trial court erred in granting Jefferson Healthcare’s motion for summary judgment. Consequently, we reverse the order granting summary judgment, and remand for further proceedings.” Id. at 216.

ISSUE #2:  Did sufficient evidence of discrimination as a motivating factor exist to survive summary judgment?

(A)  YES: CRABTREE PRESENTED SUFFICIENT EVIDENCE TO SHOW THAT A GENUINE ISSUE OF MATERIAL FACT EXITS AS TO WHETHER HER PREGNANCY WAS A SUBSTANTIALLY MOTIVATING FACTOR IN HER TERMINATION.

THE RULES: See supra § III(3)(C) (General Rules: Burden-Shifting Framework: Step 3 – Employee Must Show Employer’s Reason is Pretext). 

(1) Plaintiff’s Argument

“Crabtree alternatively argues that she presented sufficient evidence to create a genuine issue of material fact as to whether Jefferson Healthcare was substantially motivated to terminate Crabtree because of her pregnancy.” Crabtree, 500 P.3d at 214.

a) Court’s Analysis (⇒)

“Viewing the evidence and inferences in Crabtree’s favor, we hold that she presented sufficient evidence to show that a genuine issue of material fact exists ….” Id. at 214.

⇒ “Goodwin was supervising four managerial positions, one of which was vacant when Crabtree announced her pregnancy. Of the three managers, Crabtree and Straughn-Morse were pregnant at the same time. If both managers were to take maternity leave at the same time, Goodwin would have been left with only one manager for the spring and summer.” Id.

⇒ “Only a few weeks before Goodwin placed Crabtree on a PIP, Goodwin evaluated Crabtree as ‘meeting expectations’ in most categories. When Whittington learned of Crabtree’s pregnancy, she remarked ‘Wow. Poor Jen. She’s going to be without a whole staff this spring/summer.'” Id. (internal citation omitted).

⇒ “Likewise, when Crabtree told Goodwin that she was pregnant, Goodwin asked if Crabtree would be taking leave, and Crabtree said she would. Goodwin then followed up by asking if Crabtree planned on coming back after her leave, and Crabtree responded ‘yes.’ Goodwin then asked if Crabtree was interested in returning to a lesser role, to which Crabtree responded ‘No. I like my job.'” Id. (internal citations omitted)

⇒ “During a staff meeting, Whittington noted that Crabtree and Straughn-Morse were pregnant and that Jefferson Healthcare expected to be short-staffed for the spring and summer.” Id.

⇒ “In addition to those remarks, Crabtree was placed on a PIP only a day after she discussed maternity leave with HR. Goodwin then expressed her lack of confidence in Crabtree’s ability to complete the PIP, and she urged Crabtree to consider lesser roles. Crabtree chose to continue in her role and was terminated before the PIP period ended.” Id.

⇒ “At the same time that Crabtree was placed on a PIP, Straughn-Morse, the other pregnant manager, assumed a lesser role. After Straughn-Morse became pregnant, Goodwin gave Straughn-Morse the responsibility of managing an additional team with no additional pay, and she informed her that the added responsibility was not optional if she wanted to continue in her role. Straughn-Morse then started at a lesser role with a corresponding reduction in pay and went on maternity leave shortly after.” Id.

⇒ “Importantly, both pregnant women on Goodwin’s team lost their managerial roles after becoming pregnant.” Id.

∴ “Viewing the evidence and inferences in Crabtree’s favor, we hold that she presented sufficient evidence to show that a genuine issue of material fact exists as to whether Crabtree’s pregnancy was a substantially motivating factor for Jefferson Healthcare to terminate her.” Id. at 214.

(2) Defendant’s First Argument

“Jefferson Healthcare argues that the comments made by Whittington and Goodwin in response to Crabtree’s pregnancy are not sufficient evidence to show a genuine issue of material fact because they do not show an intent to discriminate.” Crabtree, 500 P.3d at 214.

a) Court’s Analysis (⇒)

The comments are circumstantial evidence probative of discriminatory intent.

⇒ The Court used the Scrivener case to evaluate this argument. “In Scivener  [sic],  the Supreme Court held that Scrivener presented sufficient evidence to create a genuine issue of material fact about whether her age was a substantial factor in her termination.” Id. at 214-15 (citing Scrivener, 181 Wash.2d at 448, 334 P.3d 541) (hyperlink added).

⇒ “Scrivener presented evidence of comments from the president noting the ‘glaring need for diversity’ and ‘need for younger talent.'” Id. at 215 (citing Scrivener, 181 Wash.2d at 449, 334 P.3d 541).

⇒ “Even though the Scrivener court considered additional circumstances, it noted ‘[w]hether 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. (citing Scrivener, 181 Wash.2d at 450, 334 P.3d 541) (alteration in original) (hyperlink added).

(3) Defendant’s Second Argument

Part 1: “Jefferson Healthcare cites to Mikkelsen to support its position that ‘stray remarks’ are not enough to create a genuine issue of material fact.” Id. at 215. (internal citation omitted). 

Part 2: “Jefferson Healthcare argues that the stray remarks alone would not have been sufficient to establish a genuine issue of material fact, and that the court considered additional circumstances in Scrivener not present here.” Id. 

◊ “In Mikkelsen, the court affirmed dismissal on summary judgment of Mikkelsen’s age discrimination claim.” Id. (citing Mikkelsen, 189 Wash.2d at 475, 404 P.3d 464) (hyperlink added).

◊ “Mikkelsen presented only two pieces of evidence in support of her age claim: the general manager called her ‘old and stale’ once, and that the general manager had a ‘fixation’ on a 72-year old employee.” Id. (citing Mikkelsen, 189 Wash.2d at 475, 404 P.3d 464).

◊ “Our Supreme Court held that Mikkelsen presented no evidence [that] the [general manager] treated older employees differently.” Id. (citing Mikkelsen, 189 Wash.2d at 475, 404 P.3d 464) (alteration in original) (internal quotation marks omitted) (emphasis added).

◊ “Therefore, it affirmed summary judgment dismissal of Mikkelsen’s age discrimination claim.” Id. (citing Mikkelsen, 189 Wash.2d at 475, 404 P.3d 464).

a) Court’s Analysis (⇒)

Stray remarks can be considered in determining whether the evidence in its entirety creates a genuine issue of material fact, and Crabtree does not rely solely on manager remarks

⇒ The Court concluded that “Scrivener made clear that stray remarks can be considered in determining whether the evidence in its entirety creates a genuine issue of material fact, and Crabtree does not rely solely on manager remarks.” Id. at 215 (citing Scrivener, 181 Wash.2d at 450, 334 P.3d 541) (“The Court of Appeals disregarded [the] statements … as stray remarks that do not give rise to an inference of discriminatory intent … We disagree.”) (internal quotation marks omitted) (alteration in original) (hyperlink added).

⇒ “Therefore, Scrivener actually supports Crabtree’s position.” Id. (hyperlink added).

⇒ In addition, “Unlike the age discrimination evidence in Mikkelsen, Crabtree presented more evidence than just the remarks made by Whittington and Goodwin.” Id. (hyperlink added).

i) “She presented evidence of another employee, Straughn-Morse, giving up her managerial position shortly before going on maternity leave.” Id.

ii) “Crabtree also introduced evidence of a potential motive behind why Straughn-Morse was moved to a lesser role and why she herself was placed on a PIP a day after discussing maternity leave with HR.” Id.

iii) “As evidenced by Goodwin and Whittington’s remarks, the vacancy on Goodwin’s team was a concern for Jefferson Healthcare.” Id.

iv) “When Crabtree informed Whittington of her pregnancy, Whittington expressed concern for how Goodwin was going to handle two of her managers taking maternity leave.” Id.

v) “In addition, when Crabtree informed Goodwin of her pregnancy, Goodwin asked if Crabtree was going to take leave and whether she was interested in a lesser role.” Id.

vi) “Moreover, the reasons for Crabtree’s termination as listed in her termination letter did not accurately reflect Crabtree’s PIP progress.” Id.

vii) “Also, the PIP came only a few weeks after Goodwin had evaluated Crabtree’s performance as meeting expectations in most categories.” Id.

∴ “Therefore, the facts surrounding Mikkelsen’s age discrimination claim are distinguishable from the facts in this case.” Id.

(4) Defendant’s Third Argument

The evidence of Straughn-Morse’s new position is irrelevant and therefore inadmissible

◊ The Defendant “cites to Brundridge, where the court held that even if evidence is probative of discriminatory intent, it will not be admissible if its value is outweighed by prejudice.” Id. at 215 (citing Brundridge v. Fluor Fed. Servs., Inc., 164 Wash.2d 432, 445, 191 P.3d 879 (2008)).

◊ “In that case, the plaintiffs alleged discriminatory discharge based on retaliation for refusing to install unsafe safety valves.” Id. (internal citation omitted).

◊ “They introduced testimony of another employee who spoke about incidents of dangerous gases and how management downplayed those incidents.” Id. at 215-16 (internal citation omitted).

◊ “The court did not admit that portion of the testimony because the company did not take adverse action against the employee who reported the incidents, and thus, the testimony was irrelevant to a retaliatory discharge claim.” Id. at 216 (internal citation omitted).

a) Court’s Analysis (⇒)

The Straughn-Morse evidence is relevant to the issue of sex discrimination

⇒ “[T]he Brundridge court admitted evidence of retaliation against other employees to show motive because it found it to be relevant.” Id. at 216 (internal citation omitted).

⇒ “Like the admissible testimony about retaliation against employees in Brundridge, the circumstances surrounding Straughn-Morse’s change in position are relevant because they tend to show that the only other pregnant manager under Goodwin’s supervision had to take a lower paying position around the same time.” Id.

⇒ “Both of the pregnant women on Goodwin’s team could not maintain their managerial roles after they announced their pregnancy.” Id.

∴ “Therefore, we consider the Straughn-Morse evidence to be relevant to the issue of sex discrimination.” Id.

(4) Defendant’s Fourth Argument

“Finally, Jefferson Healthcare argues that Straughn-Morse’s decision to move to a lesser role was voluntary because she did not indicate that Jefferson Healthcare pressured or threatened her to take adverse action against her if she did not accept the position.” Id. at 216.

a) Court’s Analysis (⇒)

“There are two rational and competing inferences, and we must view the inferences and evidence in the light most favorable to Crabtree.” Id. at 216.

⇒ “[W]hen reviewing an order granting summary judgment, we view all evidence and inferences in the light most favorable to the nonmoving party.” Id.

⇒ “Here, there are two inferences that could be made from Straughn-Morse’s position change.” Id.

⇒ “The first inference is that she accepted the position voluntarily without any pressure from Jefferson Healthcare—such an inference would be a nondiscriminatory inference.” Id.

⇒ “Another inference could be that in the conversation Straughn-Morse had with Goodwin, she felt that she had no choice but to accept a lesser role in order to keep her job—such an inference would be a discriminatory inference.” Id.

∴ “There are two rational and competing inferences, and we must view the inferences and evidence in the light most favorable to Crabtree.” Id.

(b) COURT’S HOLDING → PLAINTIFF

“Viewing the evidence and inferences in Crabtree’s favor, we hold that she presented sufficient evidence to show that a genuine issue of material fact exists as to whether Crabtree’s pregnancy was a substantially motivating factor for Jefferson Healthcare to terminate her.” Id. at 214.

(c) REVERSED AND REMANDED

 “Because genuine issues of material fact exist, the trial court erred in granting Jefferson Healthcare’s motion for summary judgment. Consequently, we reverse the order granting summary judgment, and remand for further proceedings.” Id. at 216.

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Floeting v. Group Health Cooperative, 192 Wn.2d 848 (Wash. 2019)

Floeting v. Group Health Cooperative, 192 Wn.2d 848 (Wash. 2019)
Floeting v. Group Health Cooperative, 192 Wn.2d 848 (Wash. 2019)

In Floeting v. Group Health Cooperative, 192 Wn.2d 848 (Wash. 2019), the Washington State Supreme Court addressed sexual harassment under the Washington Law Against Discrimination (WLAD), RCW 49.60, within the context of public accommodations discrimination.

IMPORTANT: This article is for informational purposes only and is based upon my point of view. This is not a resource for the actual and complete appellate court opinion. 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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Court Slips: Snapshot

SNAPSHOT: This is a case summary of Floeting v. Group Health Cooperative, 192 Wn.2d 848 (Wash. 2019). It contains multiple sections. The following section is a snapshot of key data including case citation, description, categories, and impact on Legal Trees. (TIP: Look for the green button throughout this article for more helpful information.)

I.  SNAPSHOT

case citation

Floeting v. Group Health Cooperative, 192 Wn.2d 848 (Wash. 2019)

DESCRIPTION

“The Washington Law Against Discrimination (WLAD) makes it unlawful for ‘any person or the person’s agent or employee to commit an act [of] discrimination … in any place of public … accommodation.’ ” Floeting, 192 Wn.2d at 850-51 (citing RCW 49.60.215).

“Christopher Floeting alleges that a Group Health Cooperative employee repeatedly sexually harassed him while he was seeking medical treatment.” Id. at 851.

“Sexual harassment is a form of sex discrimination.” Id.

“Group Health argues that we should import workplace sexual harassment doctrines into the public accommodations context, categorically limiting employer liability.” Id.

“We decline to do so and affirm.” Id.

CATEGORIES

(1) Sexual Harassment

(2) Public Accommodations

LEGAL TREEs

Δ → ∼

Court Slips: Case Summary SectionCASE SUMMARY SECTION: The following section contains facts and enumerates material evidence that the Court considered in this case. 

II.  CASE SUMMARY

FACTS (10 Total):

[1]  “Floeting had been a member and patient of Group Health, a nonprofit health care system, for over 35 years.” Floeting, 192 Wn.2d at 851.

[2]  “Group Health is a place of public accommodation. ” Id.

[3]  “Floeting alleges that beginning in July 2012, he was repeatedly sexually harassed by a Group Health employee during his regularly scheduled medical appointments.” Id.

[4]  “He filed a complaint with Group Health, and Group Health investigated.” Id.

[5]  “Two weeks later, Group Health terminated the employee.” Id.

[6]  “Floeting sued Group Health for the unwelcome and offensive sexual conduct he experienced.” Id.

[7]  “The trial court dismissed his claim on summary judgment, presumably pursuant to Group Health’s argument that the employment discrimination standard applies.” Id. (footnote omitted).

[8]  “The trial judge did not explain his reasoning. As it does here, Group Health argued that Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406, 693 P.2d 708 (1985), should control[ ][;] [i]n other words, Group Health asserts that an employer is not liable for the discriminatory conduct of its employee if it did not know about the conduct.” Id. at 870 n.1.

[9]  “The Court of Appeals reversed.” Id. at 851 (citing Floeting v. Grp. Health Coop., 200 Wn.App. 758, 403 P.3d 559 (2017)).

[10]  “We granted review.” Id. (citing Floeting v. Grp. Health Coop., 190 Wn.2d 1007, 409 P.3d 1063 (2018)).

Floeting v. Group Health Cooperative, 192 Wn.2d 848 (Wash. 2019).

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Court Slips: General Rules Section

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. Washington Law Against Discrimination

1.  STANDARD OF REVIEW

(A)  QUESTIONS OF LAW

DE NOVO REVIEW: “Since both of Group Health’s challenges present questions of law, our review is de novo.” Floeting, 192 Wn.2d at 852 (citing Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 239, 59 P.3d 655 (2002) (citing State v. Keller, 143 Wn.2d 267, 276, 19 P.3d 1030 (2001))).

(B)  PLAIN LANGUAGE RULE

PLAIN LANGUAGE RULE: “When reviewing a statute, the court will give effect to the statute’s plain language.” Id. (citing Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002)) (hyperlink added).

CONSIDERATIONS: “In determining if the statute is plain, we will consider the ordinary meaning of words, basic rules of grammar, and statutory context.” Id. (citing Citizens All. for Prop. Rights Legal Fund v. San Juan County, 184 Wn.2d 428, 435, 359 P.3d 753 (2015)) (hyperlink added).

(C)  STANDARDS OF CONDUCT & ATTENDANT RULES OF LIABILITY

“It is the province of the legislature to establish standards of conduct and attendant rules of liability.” Id. at 856 (internal citations omitted).

2. WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

(A)  POLICY

PRACTICES OF DISCRIMINATION: “The legislature has declared ‘that practices of discrimination … threaten[ ] not only the rights and proper privileges of [Washington’s] inhabitants but menace[ ] the institutions and foundation of a free democratic state.'” Id. at 852 (citing RCW 49.60.010). (alterations in original).

PLACES OF PUBLIC ACCOMMODATION: “The legislature has also directed … [the courts] to liberally construe WLAD to eradicate discrimination, including discrimination in places of public accommodation.” Id. (citing RCW 49.60.010, .020; see also Jin Zhu v. N. Cent. Educ. Serv. Dist.-ESD 171, 189 Wn.2d 607, 614, 404 P.3d 504 (2017) (“quoting Marquis v. City of Spokane, 130 Wn.2d 97, 108, 922 P.2d 43 (1996)”)).

“The fundamental object of laws banning discrimination in public accommodations is to vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.” Id. at 855 (internal citations and quotation marks omitted).

(B)  PLACES OF PUBLIC ACCOMMODATION

FREEDOM FROM DISCRIMINATION–DECLARATION OF CIVIL RIGHTS (RCW 49.60.030(1)(B)): “Under RCW 49.60.030(1)(b), WLAD secures the right to ‘full enjoyment’ of any place of public accommodation, including the right to purchase any service or commodity sold by any place of public accommodation ‘without acts directly or indirectly causing persons of [a protected class] to be treated as not welcome, accepted, desired, or solicited.'” Floeting, 192 Wn.2d at 852-53 (referencing RCW 49.60.040(14)) (hyperlink added).

MEANING OF “FULL ENJOYMENT”: Thus, “WLAD protects the customer’s ‘full enjoyment’ of the services and privileges offered in public accommodations.” Id. at 855 (citing RCW 49.60.030(1)(b)). “WLAD’s broad definition of ‘full enjoyment’ extends beyond denial of service to include liability for mistreatment that makes a person feel ‘not welcome, accepted, desired, or solicited.'” Id. (citing RCW 49.60.040(14)). “Denial or deprivation of services on the basis of one’s protected class is an affront to personal dignity.” Id. (internal citations omitted).

(1)  Strict Liability

THE TEST: “The test we adopt imposes strict liability to the extent it does not allow an employer to escape liability by asserting a lack of fault.” Id. at 859.

BLACK’S LAW DICTIONARY: “According to Black’s Law Dictionary, ‘strict liability’ is ‘[l]iability that does not depend on proof of negligence or intent to do harm but that is based instead on a duty to compensate the harms proximately caused by the activity or behavior subject to the liability rule.'” Floeting, 192 Wn.2d at 859 (citing BLACK’S LAW DICTIONARY 1055 (10th ed. 2014)) (alteration in original).

EMPLOYER LIABILITY: Under public accommodation law, an employer “will be liable if its employee caused the harm prohibited by the statute, even if it did not participate in the discrimination and was not negligent in training or supervising its employees.” See id. “Therefore, … [an employer] is subject to strict liability for the discriminatory conduct of its employee in a place of public accommodation. See id.

PUBLIC ACCOMMODATIONS (SEX): “RCW 49.60.215 states[ ][:]

‘It shall be an unfair practice for any person or the person’s agent or employee to commit an act which directly or indirectly results in … discrimination’ on the basis of sex.

Id. at 859.

DEFINITION OF PERSON: “‘Person’ includes one or more individuals, partnerships, associations, organizations, corporations, cooperatives, legal representatives, trustees and receivers, or any group of persons; it includes any owner, lessee, proprietor, manager, agent, or employee, whether one or more natural persons; and further includes any political or civil subdivisions of the state and any agency or instrumentality of the state or of any political or civil subdivision thereof.” Id. at 859-60 (citing RCW 49.60.040(19)) (emphasis in original).

INTERPRETATION: “We therefore must interpret ‘any person or the person’s agent or employee’ to mean something more than that each person is liable for their own actions.” Id. at 860. “Reading the statute to make employers liable for the actions of their employees in this context, even when the employer itself is not at fault, has this effect.” Id.

(2)  Sexual Harassment

“Sexual harassment is a form of sex discrimination, which we analyze like other forms of discrimination in places of public accommodation.” Id. at 853 (internal citations omitted).

(3)  The Prima Facie Case: Public Accommodation

THE FELL STANDARD (RCW 49.60.215): “More than twenty years ago, we set forth the standard for establishing a prima facie case of discrimination in a place of public accommodation under RCW 49.60.215.” Floeting, 192 Wn.2d at 853 (referencing Fell v. Spokane Transit Auth., 128 Wn.2d 618, 637, 911 P.2d 1319 (1996)) (footnote omitted). “Fell established that in order to make a prima facie case of discrimination under RCW 49.60.215[ ][:]

a plaintiff must prove that

(1) the plaintiff is a member of a protected class,

(2) the defendant’s establishment is a place of public accommodation,

(3) the defendant discriminated against the plaintiff when it did not treat the plaintiff in a manner comparable to the treatment it provides to persons outside that class, and

(4) the plaintiff’s protected status was a substantial factor that caused the discrimination.

Floeting, 192 Wn.2d at 583-84 (citing Fell, 128 Wn.2d at 637) (internal citations omitted) (paragraph formatting, hyperlink, and emphasis added).

(4)  No WLAD Amendments

“In all the time since [Fell v. Spokane Transit Auth.], the legislature has not seen fit to amend WLAD to impose a different standard on claims of discrimination in places of public accommodation.” Id. at 854.

(5)  Reasonable Person Test Applied In Public Accommodations Context:

“We agree with the Court of Appeals when it noted:

To be actionable, the asserted discriminatory conduct must be objectively discriminatory. By this we mean that it must be of a type, or to a degree, that a reasonable person who is a member of the plaintiff’s protected class, under the same circumstances, would feel discriminated against (as described in subsections [RCW 49.60].040(14) and .215(1) ). This is an objective standard.

Id. at 858 (citing Floeting v. Grp. Health Coop., 200 Wn.App. at 758, 773-74, 403 P.3d 559 (2017)) (alterations and emphasis in original) (hyperlinks added). “This is the reasonable person test applied in the public accommodations context.” Id. (internal citation omitted).

(6) Not A Negligence Statute: Foreseeability Irrelevant

RCW 49.60.215 “is not a negligence statute where foreseeability matters; it imposes direct liability for discriminatory acts, regardless of the culpability of the actor.” Floeting, 192 Wn.2d at 856.

(7) No Pervasiveness Or Severity Requirement: A Single Act May Violate WLAD

“There is no statutorily required pervasiveness or severity requirement for discriminatory conduct in the public accommodations context.” Id. at 858 (referencing ch. 49.60 RCW) (footnote omitted). “A single discriminatory act in a place of public accommodation may violate WLAD.” Id. (referencing, e.g., King v. Greyhound Lines, Inc., 61 Or.App. 197, 199-201, 656 P.2d 349 (1982) (“interpreting a provision similar to the WLAD and holding bus company liable for an employee’s use of two racial slurs toward a customer”); accord Evergreen Sch. Dist. No. 114 v. Wash. State Human Rights Comm’n, 39 Wn.App. 763, 774, 695 P.2d 999 (1985)).

(8)  Must Show More Than Subjectively Offensive Rhetoric

“[W]e stress that plaintiffs must show more than ‘mere rhetoric that is subjectively offensive.'” Id. at 858 (internal citations omitted).

(9)  Inquiry Is Whether Actions Resulted In Discrimination Not Whether Intent To Discriminate

The focus of the “liability inquiry [is] on whether actions resulted in discrimination, not whether the proprietor of a place of public accommodation intended to discriminate.” See id. at 853. This is based upon the following broad standard:

(a) WLAD: “any person or the person’s agent or employee”

The WLAD “prohibits ‘any person or the person’s agent or employee [from committing] an act which directly or indirectly results in any distinction, restriction, or discrimination’ based on a person’s membership in a protected class.” Id. at 853 (referencing RCW 49.60.215) (emphasis and alteration in original).

Accordingly, “WLAD makes it unlawful for ‘any person or the person’s agent or employee to commit an act’ of, among other things, discrimination in a place of public accommodation.” Id. at 856 (citing RCW 49.60.215) (emphasis added).

DIRECT LIABILITY: “This provision imposes direct liability on employers for the discriminatory conduct of their agents and employees.” Id. at 856. “We can say it no better than the Court of Appeals:

It is an unfair practice for ‘any person or the person’s agent or employee’ to commit a forbidden act. RCW 49.60.215(1). This language attributes responsibility for the agent’s or employee’s discriminatory act to the ‘person’ (employer) without mention of the doctrines of vicarious liability or respondeat superior. In this way, the legislature chose to fight discrimination in public accommodations by making employers directly responsible for their agents’ and employees’ conduct.

Floeting, 192 Wn.2d at 856 (citing Floeting v. Grp. Health Coop., 200 Wn.App. 758, 770, 403 P.3d 559 (2017)) (hyperlink added).

(C)  EMPLOYMENT CONTEXT

THE PRIMA FACIE CASE: “In the employment context, a plaintiff alleging workplace sexual harassment must show[:]

(1) the conduct was unwelcome,

(2) the conduct was because of sex,

(3) the conduct affected the terms or conditions of employment, and

(4) the harassment can be imputed to the employer because the employer

(i) authorized, knew of, or should have known of the harassment and

(ii) failed to take reasonably prompt and corrective action.

Id. at 854 (citing Glasgow v. Ga.-Pac. Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985) (“holding sexual harassment deprived plaintiff of a workplace free of sex discrimination”)) (paragraph formatting and emphasis added).

(D)  EMPLOYMENT vs. PUBLIC ACCOMMODATION
(1)  Washington State

In Washington State, “we treat employment discrimination claims differently from public accommodation discrimination claims because WLAD treats them differently.” Id. at 854.

(2)  Employment

“An employee alleging employment discrimination must show that the misconduct affected the ‘terms or conditions of [their] employment.'” Id. at 854 (citing RCW 49.60.180(3); Glasgow, 103 Wn.2d at 405-06, 693 P.2d 708) (alteration in original). “The employment discrimination statute is limited to unfair practices by an ’employer’ by operation of the language “It is an unfair practice for any employer[ ] [t]o …” Id. at 854-55 (citing RCW 49.60.180) (alterations in original).

(3)  Public Accommodation

NOT LIMITED BY TERMS OR CONDITIONS OF PUBLIC ACCOMMODATION: “In contrast, WLAD provisions prohibiting discrimination in a public accommodation do not limit themselves to the ‘terms or conditions’ of a public accommodation.” Id. at 855 (referencing RCW 49.60.215).

DISCRIMINATION BY ANY PERSON OR PERSON’S AGENT OR EMPLOYEE: “Discrimination by ‘any person or the person’s agent or employee’ is an unfair practice in a public accommodation … in this context, the person subject to WLAD broadly includes, among others, individuals, corporations, owners, proprietors, managers, and employees.” Id. (citing RCW 49.60.040(19)( (internal citation omitted).

(E)  DIRECT & VICARIOUS LIABILITY

UNLIKE FEDERAL LAW, WLAD SUPPORTS A READING OF BOTH DIRECT AND VICARIOUS LIABILITY: “Title II of the Civil Rights Act of 1964 does not refer to the ‘person’ who may be liable or contain a relevant definition. For this reason, liability under federal law is usually limited to instances where the common law doctrines of vicarious liability or respondeat superior impose liability[ ][;] [u]nlike federal law, the comprehensive language in WLAD supports a reading of both direct and vicarious liability.” Id. at 870 n.4. (referencing RCW 49.60.215).

Court Slips: Issues SectionISSUES 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:  Are employers directly liable for the discriminatory actions of their employees toward customers in a place of public accommodation?

(A)  YES: UNDER THE PLAIN LANGUAGE OF WLAD, EMPLOYERS ARE DIRECTLY LIABLE FOR THEIR EMPLOYEES’ DISCRIMINATORY CONDUCT TOWARD A CUSTOMER IN A PLACE OF PUBLIC ACCOMMODATION

RULE: See § III(2) (General Rules: Washington Law Against Discrimination), supra.

(1)  “WLAD makes it unlawful for ‘any person or the person’s agent or employee to commit an act’ of, among other things, discrimination in a place of public accommodation. RCW 49.60.215. This provision imposes direct liability on employers for the discriminatory conduct of their agents and employees.” Id. at 856.

“RCW 49.60.215[ ] … imposes direct liability on employers for the discriminatory conduct of their agents and employees. We can say it no better than the Court of Appeals:

It is an unfair practice for ‘any person or the person’s agent or employee’ to commit a forbidden act. RCW 49.60.215(1). This language attributes responsibility for the agent’s or employee’s discriminatory act to the ‘person’ (employer) without mention of the doctrines of vicarious liability or respondeat superior.

In this way, the legislature chose to fight discrimination in public accommodations by making employers directly responsible for their agents’ and employees’ conduct.

Floeting, 192 Wn.2d at 856 (citing Floeting, 200 Wn.App. at 770, 403 P.3d 559) (paragraph formatting added).

a) RCW 49.60.215 is not a negligence statute where foreseeability matters

EMPLOYER ARGUMENT (NO LIABILITY FOR UNFORESEEABLE ACTS OF EMPLOYEE): “Group Health contends that it should not be held liable for ‘unforeseeable acts of an employee.'” Id. (internal citation omitted).

COURT’S ANALYSIS: “But RCW 49.60.215 is not a negligence statute where foreseeability matters; it imposes direct liability for discriminatory acts, regardless of the culpability of the actor.” Floeting, 192 Wn.2d at 856.

b) “[A] rule that only actions by supervisors are imputed to the employer would result, in most cases, in a no liability rule.’ “

EMPLOYER ARGUMENT (APPLY DIFFERENT STANDARDS FOR FRONTLINE EMPLOYEES): “Group Health also contends that we should apply a different standard to the acts of frontline employees than we do to supervisors.” Id.

COURT’S ANALYSIS: “Nothing in the text of WLAD supports that approach.” Id. at 856-57.  “[A] rule that only actions by supervisors are imputed to the employer would result, in most cases, in a no liability rule.” Id. at 857 (alteration in original) (internal citations, footnote, and quotation marks omitted). According to the Court:

Title II of the Civil Rights Act of 1964 does not refer to the ‘person’ who may be liable or contain a relevant definition. For this reason, liability under federal law is usually limited to instances where the common law doctrines of vicarious liability or respondeat superior impose liability.

Unlike federal law, the comprehensive language in WLAD supports a reading of both direct and vicarious liability. See RCW 49.60.215.

Floeting, 192 Wn.2d at 870 n.4 (paragraph formatting and hyperlink added).

c)  The Court cannot ignore both the plain language of the statute and the larger statutory scheme

EMPLOYER ARGUMENT (AGENCY/VICARIOUS LIABILITY): “Group Health suggests we should apply an agency or vicarious liability lens to employer liability for employee conduct under RCW 49.60.215.” Floeting, 192 Wn.2d at 857 (hyperlink added).

COURT’S ANALYSIS: “This would require us to ignore both the plain language of the statute and the larger statutory scheme.” Id.

THE STATUTE & STATUTORY SCHEME: “The statute makes it unlawful for any person or the person’s agent or employee to commit an act [of] discrimination … in any place of public … accommodation.” Id. at 857 (citing RCW 49.60.215).”Of the fourteen ‘unfair practices’ provisions under WLAD, employers are directly liable for the acts of employees in only two instances[ ]”; one of those instances is “the relevant public accommodations provision ….” Id. This provisions’ “direct liability language stands in contrast to the other dozen provisions.” Id. (internal citation omitted).

NO STATUTORY SUPPORT FOR EMPLOYER KNOWLEDGE BEFORE LIABILITY: “There is no statutory support for the argument that an employer must know about the discrimination or have an opportunity to take corrective action before liability may be imposed.” Id.

d)  “There is no statutorily required pervasiveness or severity requirement for discriminatory conduct in the public accommodations context.”

EMPLOYER’S ARGUMENT (ADOPT GLASGOW’S SEVERE OR PERVASIVE REQUIREMENT): “Group Health also argues that we should adopt Glasgow’s ‘severe’ or ‘pervasive’ requirement for sexual harassment claims in places of public accommodation.” Id. at 858 (internal citations omitted).

COURT’S ANALYSIS: “We decline to do so. There is no statutorily required pervasiveness or severity requirement for discriminatory conduct in the public accommodations context.” Id. (referencing ch. 49.60 RCW) (footnote omitted). “A single discriminatory act in a place of public accommodation may violate WLAD.” Id. (internal citation omitted). Applying the Reasonable Person Test (see Section III(2)(b)(5), supra), the Court determined:

[T]aking his allegations as true, as we must at this stage, Floeting alleged more than subjectively offensive rhetoric from Group Health’s employee. He alleged that he ‘objectively received substandard treatment.’ Clerk’s Papers at 390. Repeated, express, and outrageous sexual harassment, as alleged here, satisfies the objective standard.

Id. at 859.

(B)  AFFIRMED & REMANDED

“We hold that under the plain language of WLAD, employers are directly liable for the sexual harassment of members of the public by their employees, just as they would be if their employees turned customers away because of their race, religion, or sexual orientation.” Id. at 582. In other words, “[u]nder the plain language of WLAD, employers are liable for their employees’ discriminatory conduct toward a customer in a place of public accommodation …. We affirm the Court of Appeals and remand for further proceedings consistent with this opinion.” Id. at 861-62.

ISSUE #2:  Should the Court import doctrines developed for the employment context into the public accommodations context?

(A)  NO: “WE DECLINE TO IMPORT DOCTRINES DEVELOPED FOR THE EMPLOYMENT CONTEXT INTO THE PUBLIC ACCOMMODATIONS CONTEXT.”

RULE: See § III(2)(B) (General Rules: Washington Law Against Discrimination (WLAD)), supra. 

(1)  “[W]e treat employment discrimination claims differently from public accommodation discrimination claims because WLAD treats them differently.” Id. at 854.
a) The employment discrimination statute is limited to unfair practices by an “employer” unlike the public accommodations statute

EMPLOYER ARGUMENT: “Instead of the traditional public accommodation claims test, Group Health argues that the framework developed to analyze sex discrimination committed by an employee against a coworker should apply.” Floeting, 192 Wn.2d at 854. Accordingly, “Group Health argues that the Glasgow employment discrimination standard ‘applies seamlessly’ and therefore it should apply.” Floeting, 192 Wn.2d at 854 (internal citation omitted). Moreover:

[Group Health] … also suggests that if we do not apply the agency principles articulated in Glasgow, we would be creating a “double standard” whereby sexual harassment claims are treated differently in different contexts.

Floeting, 192 Wn.2d at 854 (internal citation omitted) (hyperlink added).

COURT’S ANALYSIS: “An employee alleging employment discrimination must show that the misconduct affected the ‘terms or conditions of [their] employment.'”  Id. at 854 (citing RCW 49.60.180(3); Glasgow, 103 Wn.2d at 405-06, 693 P.2d 708). “The employment discrimination statute is limited to unfair practices by an ’employer’ by operation of the language “It is an unfair practice for any employer[ ] [t]o …” Id. at 854-55 (citing RCW 49.60.180).

“In contrast, WLAD provisions prohibiting discrimination in a public accommodation do not limit themselves to the ‘terms or conditions’ of a public accommodation.” Id. at 855 (referencing RCW 49.60.215). “Discrimination by ‘any person or the person’s agent or employee’ is an unfair practice in a public accommodation, … [RCW 49.60.215]; in this context, the person subject to WLAD broadly includes, among others, individuals, corporations, owners, proprietors, managers, and employees.” Floeting, 192 Wn.2d at 855 (citing RCW 49.60.040(19)) (hyperlink added).

In this case, “Floeting’s claim is more of a consumer claim than a claim between an employee and employer, and his claim is not limited by the employment discrimination statute.” Id.

b)  “RCW 49.60.215 [(public accommodations)] … imposes direct liability on employers for the discriminatory conduct of their agents and employees.” Id. at 856.

EMPLOYER ARGUMENT: See Issue #2(A)(1)(a), supra.

COURT’S ANALYSIS: “We can say it no better than the Court of Appeals:

It is an unfair practice for ‘any person or the person’s agent or employee’ to commit a forbidden act. RCW 49.60.215(1). This language attributes responsibility for the agent’s or employee’s discriminatory act to the ‘person’ (employer) without mention of the doctrines of vicarious liability or respondeat superior.

In this way, the legislature chose to fight discrimination in public accommodations by making employers directly responsible for their agents’ and employees’ conduct.

Floeting, 192 Wn.2d at 856 (citing Floeting, 200 Wn.App. at 770, 403 P.3d 559) (paragraph formatting and hyperlink added).

(B)  AFFIRMED & REMANDED

“Under the plain language of WLAD, employers are liable for their employees’ discriminatory conduct toward a customer in a place of public accommodation. The Glasgow standard does not apply to claims of discrimination in places of public accommodation. We affirm the Court of Appeals and remand for further proceedings consistent with this opinion.” Floeting, 192 Wn.2d at 861-62.

DISSENT (Madsen, J.)

(A)  DISCRIMINATRION IN PLACES OF PUBLIC ACCOMMODATION SHOULD BE ANALYZED UNDER THE SAME STANDARDS AS WORKPLACE HARASSMENT

DISSENT RULE: STRICT LIABILITY: “Washington courts will not construe a statute to impose strict liability absent a clear indication that the Legislature intended to do so.” Id. at 866 (citing Wright v. Engum, 124 Wn.2d 343, 349, 878 P.2d 1198 (1994) (citing Hyatt v. Sellen Constr. Co., 40 Wn.App. 893, 897, 700 P.2d 1164 (1985))). Moreover:

It must be clear that the legislature intended to impose strict vicarious liability before we construe the statute to give that effect. The legislature knows when it wishes to create strict liability and is clear when doing so.

Id. at 867.

DISSENT RULE: VICARIOUS LIABILITY: “[W]e found actions under Title VII of the Civil Rights Act of 1964 persuasive in implementing a knowledge element to vicarious liability under the workplace harassment statute.” Id. at 868 (referencing Glasgow, 103 Wn.2d at 406 n.2, 693 P.2d 708)) (footnote omitted). Accordingly:

[W]e held that an employer is vicariously liable under the WLAD where the act is silent. However, based on the fact that an employer is in the best position to rectify the misconduct only when it is aware or should be aware of the misconduct, we believed a ‘knew or should have known’ standard was appropriate to fairly hold employers accountable for the acts of their employees under RCW 49.60.180(3).

Floeting, 192 Wn.2d at 868-69 (hyperlink and emphasis in last sentence added).

(1)  It is unclear whether the legislature intended to impose strict vicarious liability as to RCW 49.60.215

DISSENT ARGUMENT: “[B]roadening who may be directly liable for their own conduct, or even the conduct of others as the majority asserts, tells us nothing about whether the legislature intended to impose strict liability on employers who had no reason to know of the discriminatory conduct.” Id. at 865. “RCW 49.60.215 is silent as to when an employer may be held liable for the acts of an employee or agent.” Floeting, 192 Wn.2d at 867.

MAJORITY: “Grafting Glasgow‘s rule imputing liability to an employer only where the employer ‘authorized, knew, or should have known’ of the discriminatory conduct and ‘failed to take reasonably prompt and adequate corrective action,’ 103 Wn.2d at 407, 693 P.2d 708, would significantly undermine the legislature’s clear language. It is the province of the legislature to establish standards of conduct and attendant rules of liability, and the legislature determined direct liability is appropriate here.” Floeting, 192 Wn.2d at 856 (internal citations omitted) (hyperlink and emphasis added).

(2)  “[W]here the statute is silent, vicarious liability should be imposed only where the business owner knew or should have known of the discrimination.” Id. at 869.

DISSENT ARGUMENT: “Again, we are faced with a statute that is silent as to when an employer should be held liable for the discriminatory acts of an employee or agent in RCW 49.60.215 (public accommodation). For the same reasons we articulated in Glasgow, where the statute is silent, vicarious liability should be imposed only where the business owner knew or should have known of the discrimination.” Floeting, 192 Wn.2d at 869 (hyperlink added).

MAJORITY: The statute is not silent. “RCW 49.60.215 states that it is an unfair practice for ‘any person or the person’s agent or employee’ to discriminate, while RCW 49.60.180(3) imposes liability only on an employer who discriminates.” Floeting, 192 Wn.2d at 860. Accordingly:

RCW 49.60.180(3) does not directly impose liability for the actions of the employer’s agents and employees (“It is an unfair practice for any employer … [t]o discriminate against any person in compensation or in other terms or conditions of employment.”).

Because RCW 49.60.180(3) prohibits only the employer itself from discriminating, it requires a showing of fault by the employer if the discrimination was perpetuated by an employee. The same is not true of RCW 49.60.215.

Floeting, 192 Wn.2d at 860-61 (alterations in original) (paragraph formatting and emphasis added).

Moreover, “[g]rafting Glasgow‘s rule imputing liability to an employer only where the employer ‘authorized, knew, or should have known’ of the discriminatory conduct and ‘failed to take reasonably prompt and adequate corrective action,’ 103 Wn.2d at 407, 693 P.2d 708, would significantly undermine the legislature’s clear language. It is the province of the legislature to establish standards of conduct and attendant rules of liability, and the legislature determined direct liability is appropriate here.” Floeting, 192 Wn.2d at 856 (internal citation omitted) (hyperlink added).

(3) “[T]he majority’s holding does little to eradicate discrimination in places of public accommodation.” Id. at 870.

DISSENT ARGUMENT: “Unless the employer knows or has reason to know of a low-level employee’s conduct, the employer cannot address the conduct.” Id. at 879. Moreover:

Imposing strict liability will more likely result in management by lawsuit. I cannot imagine that was the legislature’s intent when enacting RCW 49.60.215.

Floeting, 192 Wn.2d at 870.

MAJORITY: “The dissent is concerned that strict liability would do little to eradicate discrimination because employers could not escape liability by showing that they acted diligently to prevent and remedy the discrimination. But:

[I]f employers know that the only way they can prevent lawsuits is by preventing their employees from discriminating at all, they will try even harder to make sure that their employees are well trained, are well supervised, and do not discriminate.

In addition, it gives employers an incentive to end any alleged discrimination as soon as possible, limiting their exposure to damages.

This will encourage employers to focus on preventing discrimination, rather than merely punishing employees when it occurs. Prevention will better further the legislative goal of eradicating discrimination in places of public accommodation.

Id. at 861 (paragraph formatting added).

(B) DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION SHOULD BE ANALYZED UNDER THE SAME STANDARDS AS WORKPLACE HARASSMENT

“Because discrimination in places of public accommodation should be analyzed under the same standards as workplace harassment, I respectfully dissent.” Id. at 870.

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