LAW OFFICE OF GREGORY A. WILLIAMS

May 18, 2023October 21, 2024

WLAD Statute of Limitations

Under Washington State laws, what is the statute of limitations for claims under the Washington Law Against Discrimination (WLAD)? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

Advertisement

THE WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

The WLAD, chapter 49.60 RCW, “is a state law that prohibits discriminatory practices in the areas of employment, places of public resort, accommodation, or amusement, in real estate transactions, and credit and insurance transactions on the basis of race, creed, color, national origin, citizenship or immigration status, families with children, sex, marital status, sexual orientation, age, honorably discharged veteran or military status, or the presence of any sensory mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability; and prohibits retaliation against persons who oppose a discriminatory practice, and those who file health care and state employee whistleblower[*] complaints.” Washington State Human Rights Commission Official Website, https://www.hum.wa.gov/about-us (last visited 5/3/23).

_____

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

STATUTE OF LIMITATIONS

Definition

A “statute of limitations” is “[a] law that bars claims after a specified period; specif., a statute establishing a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered.” Black’s Law Dictionary 1451 (Deluxe 8th ed. 2004). “The purpose of such a statute is to require diligent prosecution of known claims, thereby providing finality and predictability in legal affairs and ensuring that claims will be resolved while evidence is reasonably available and fresh.” Id. The Washington State statute concerning limitation of actions is contained under chapter 4.16 RCW.

THE WLAD Statute of Limitations (3 years)

The statute of limitations for commencing* a WLAD lawsuit is 3 years pursuant to RCW 4.16.080(2). See Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607, 676 P.2d 545 (Wash.App. Div. 1 1984). “RCW 4.16.080 provides in relevant part:

Actions limited to three years. Within three years:

* * *

(2) An action for taking, detaining, or injuring personal property, including an action for the specific recovery thereof, or for any other injury to the person or rights of another not hereinafter enumerated;

Lewis, 36 Wn.App. at 609, 676 P.2d 545 (hyperlink to external website and emphasis added).

_____

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

FURTHER SUPPORT

“Further support for applying the 3-year statute [to the WLAD] is found in the Legislature’s directive that RCW 49.60 be liberally construed.” Id. (citing Franklin County Sheriff’s Office v. Sellers, 97 Wash.2d 317, 334, 646 P.2d 113 (1982), cert. denied, — U.S. —-, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983); Fahn v. Cowlitz County, 93 Wash.2d 368, 374, 610 P.2d 857 (1980)) (hyperlink to external website added).

WARNING

It can be a complicated and difficult process to determine when the statute of limitations begins to run for individual WLAD claims, and an improper determination can bar both claims for prospective lawsuits and administrative relief.

NOTE: Generally, the jurisdictional time limitation for filing WLAD and Title VII complaints of discrimination through administrative agencies such as the Washington State Human Rights Commission and the U.S. Equal Employment Opportunity Commission (EEOC), respectively, is much shorter than the statute of limitations for commencing WLAD and/or Title VII lawsuits through court — speak to an attorney to learn more.

Therefore, the reader is strongly encouraged to use the assistance of legal counsel to determine when the statute of limitations (or jurisdictional time limitation for administrative agencies) begins to run for individual WLAD claims — please see our DISCLAIMER.

LEARN MORE

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

May 4, 2023October 21, 2024

WLAD Statute of Limitations: Equitable Tolling

Under Washington State law, what must a civil plaintiff demonstrate to obtain equitable tolling of the statute of limitations when pursuing a Washington Law Against Discrimination (hereinafter, “WLAD”) claim? Here’s my point of view.

Advertisement

WLAD STATUTE OF LIMITATIONS: EQUITABLE TOLLING

THE WLAD

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

STATUTE OF LIMITATIONS

“In Fowler v. Guerin, our [Washington State] Supreme Court explained that ‘statutes of limitation reflect the importance of finality and settled expectations in our civil justice system.'” Campeau v. Yakima HMA LLC, 38152-8-III (Wash. App. May 02, 2023) (citing Fowler v. Guerin, 200 Wn.2d 110, 118, 515 P.3d 502 (2022)). Accordingly, “[a] statutory time bar is a legislative declaration of public policy which the courts can do no less than respect, with rare equitable exceptions.” Id. (citing Fowler, 200 Wn.2d at 118, 515 P.3d 502) (alteration in original) (internal quotation marks omitted) (emphasis added).

eQUITABLE TOLLING (WA state): tHE MILLAY STANDARD

“In civil cases, Washington has consistently required a plaintiff seeking equitable tolling of the statute of limitations to demonstrate [the following:]

(1) the plaintiff has exercised diligence,

(2) the defendant’s bad faith, false assurances, or deception interfered with the plaintiff’s timely filing,

(3) tolling is consistent with

(a) the purpose of the underlying statute and

(b) the purpose of the statute of limitations, and

(4) justice requires tolling the statute of limitations.

Campeau, 38152-8-III (citing Fowler, 200 Wn.2d at 125, 515 P.3d 502 (“describing the four predicates as the Millay standard[, Millay v. Cam, 135 Wn.2d 193, 955 P.2d 791 (1988)]”)) (emphasis added).

However, Washington courts have “cautioned against broadly applying equitable tolling in a manner that would substitute for a positive rule established by the legislature a variable rule of decision based upon individual ideas of justice.” Id. (citing Fowler, 200 Wn.2d at 119, 515 P.3d 502) (internal citation and quotation marks omitted).

LEARN MORE

April 27, 2023October 21, 2024

Illegal Contracts in Washington State

Under Washington State law, are illegal contracts enforceable when they are in conflict with a statutory law? Here’s my point of view.

Advertisement

ILLEGAL CONTRACTS IN WASHINGTON STATE

“A contract that is in conflict with statutory requirements is illegal and unenforceable as a matter of law.” Failor’s Pharmacy v. Department of Social and Health Services, 125 Wn.2d 488, 499, 886 P.2d 147 (1994) (Medicaid reimbursement schedules promulgated in violation of statutory requirements were void and unenforceable).

Accordingly, where “a contract is illegal or grows immediately out of and is connected with an illegal contract, Washington courts leave the parties to the contract where they find them.” State v. Pelkey, 58 Wn.App. 610, 615, 794 P.2d 1286 (Div. 1 1990) (internal quotation marks and citations omitted). Thus, “as a general rule, a contract that is contrary to the terms and policy of an express legislative enactment is illegal and unenforceable.” Id. (internal quotation marks and citations omitted).

EXAMPLE: STATE v. PELKEY

For example, in State v. Pelkey, a criminal defendant allegedly attempted to bribe a city police officer by giving him goods and money to be kept appraised of vice surveillance; however, Pelkey’s criminal case was ultimately dismissed, and Pelkey sought return of said goods and money. Id. at 611-12. The City argued that the property did not have to be returned, because no seizure had occurred and Pelkey filed his motion in the wrong court. The court refused to honor the parties’ so-called contractual agreement, leaving them as the court found them, after reasoning that a contract that is contrary to the terms and policy of an express legislative enactment [i.e., bribery] is illegal and unenforceable. See id.

CONCLUSION

In Washington State, a contract that is contrary to the terms and policy of an express legislative enactment is illegal and unenforceable.

LEARN MORE

April 20, 2023October 21, 2024

WA State Human Rights Commission: Functions, Powers, and Duties

Under Washington State laws, what are certain functions, powers, and duties of the Washington State Human Rights Commission (“WSHRC”)? Here’s my point of view.

Advertisement

WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): EMPLOYMENT

The Washington Law Against Discrimination (“WLAD”), Chapter 49.60 RCW, “is a state law that prohibits discriminatory practices in the areas of employment, places of public resort, accommodation, or amusement, in real estate transactions, and credit and insurance transactions on the basis of race, creed, color, national origin, families with children, sex, marital status, sexual orientation, age, honorably discharged veteran or military status, or the presence of any sensory mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability; and prohibits retaliation against persons who oppose a discriminatory practice, and those who file health care and state employee whistleblower* complaints.” WSHRC Official Website, last accessed 4/19/23 (emphasis and hyperlinks added).

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

WA STATE HUMAN RIGHTS COMMISSION (WSHRC): CERTAIN FUNCTIONS, POWERS, AND DUTIES

The Washington State Legislature established the WSHRC* in 1949 as “a state agency responsible for administering and enforcing the Washington Law Against Discrimination.” WSHRC Official Website, last accessed 4/19/23. The agency has certain functions, powers, and duties, as follows:

RCW 49.60.120

Certain powers and duties of commission.

The commission shall have the functions, powers, and duties:

(1) To appoint an executive director and chief examiner, and such investigators, examiners, clerks, and other employees and agents as it may deem necessary, fix their compensation within the limitations provided by law, and prescribe their duties.

(2) To obtain upon request and utilize the services of all governmental departments and agencies.

(3) To adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.

(4) To receive, impartially investigate, and pass upon complaints alleging unfair practices as defined in this chapter.

(5) To issue such publications and results of investigations and research as in its judgment will tend to promote good will and minimize or eliminate discrimination because of sex, sexual orientation, race, creed, color, national origin, citizenship or immigration status, marital status, age, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability.

(6) To make such technical studies as are appropriate to effectuate the purposes and policies of this chapter and to publish and distribute the reports of such studies.

(7) To cooperate and act jointly or by division of labor with the United States or other states, with other Washington state agencies, commissions, and other government entities, and with political subdivisions of the state of Washington and their respective human rights agencies to carry out the purposes of this chapter. However, the powers which may be exercised by the commission under this subsection permit investigations and complaint dispositions only if the investigations are designed to reveal, or the complaint deals only with, allegations which, if proven, would constitute unfair practices under this chapter. The commission may perform such services for these agencies and be reimbursed therefor.

(8) To foster good relations between minority and majority population groups of the state through seminars, conferences, educational programs, and other intergroup relations activities.

RCW 49.60.120 (emphasis added).

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

READ OUR RELATED ARTICLES

» Definition of Commission (WLAD)

» Remedies for Breach of Conciliation Agreements**

» The Intersection of WSHRC and EEOC**

» The Washington State Human Rights Commission**

» WA State Human Rights Commission Complaints

» WA State Human Rights Commission: Damages for Humiliation & Suffering**

» WSHRC: From Complaint to Conclusion

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

LEARN MORE

April 13, 2023November 27, 2024

The Local Government Tort-Claim Filing Statute: Guiding Policies

Under Washington State law, what are the guiding policies (i.e., purposes) of the local government tort-claim filing statute? Here’s my point of view.

Advertisement

LOCAL GOVERNMENT TORT-CLAIM FILING STATUTE

A tort is a civil wrong, other than breach of contract, for which remedies may be obtained. Prospective plaintiffs intending to pursue tort claims against a Washington State local-governmental entity are required to conform to certain statutory requirements. See RCW 4.96. The relevant law states as follows:

RCW 4.96.010
Tortious conduct of local governmental entities—Liability for damages.

(1) All local governmental entities, whether acting in a governmental or proprietary capacity, shall be liable for damages arising out of their tortious conduct, or the tortious conduct of their past or present officers, employees, or volunteers while performing or in good faith purporting to perform their official duties, to the same extent as if they were a private person or corporation.

Filing a claim for damages within the time allowed by law shall be a condition precedent to the commencement of any action claiming damages.

The laws specifying the content for such claims shall be liberally construed so that substantial compliance therewith will be deemed satisfactory.

(2) Unless the context clearly requires otherwise, for the purposes of this chapter, “local governmental entity” means a county, city, town, special district, municipal corporation as defined in RCW 39.50.010, quasi-municipal corporation, any joint municipal utility services authority, any entity created by public agencies under RCW 39.34.030, or public hospital.

(3) For the purposes of this chapter, “volunteer” is defined according to RCW 51.12.035.

RCW 4.96.010 (paragraph formatting and emphasis added).

THE 60-DAY REQUIREMENT

Thus, a “local government entity is liable for damages arising from its tortious conduct to the same extent as if it were a private person or corporation.” Renner v. City of Marysville, 230 P.3d 569, 571, 168 Wash.2d 540 (Wash. 2010) (citing RCW 4.96.010(1)). “However, prospective plaintiffs must file a tort claim with the local government at least 60 days prior to filing a lawsuit.” Id. The relevant law is as follows:

RCW 4.96.020
Tortious conduct of local governmental entities and their agents—Claims—Presentment and filing—Contents.

…

(4) No action subject to the claim filing requirements of this section shall be commenced against any local governmental entity, or against any local governmental entity’s officers, employees, or volunteers, acting in such capacity, for damages arising out of tortious conduct until sixty calendar days have elapsed after the claim has first been presented to the agent of the governing body thereof.

The applicable period of limitations within which an action must be commenced shall be tolled during the sixty calendar day period.

For the purposes of the applicable period of limitations, an action commenced within five court days after the sixty calendar day period has elapsed is deemed to have been presented on the first day after the sixty calendar day period elapsed.

RCW 4.96.020(4) (paragraph formatting and emphasis added).

(IMPORTANT: There are additional filing requirements (e.g., access to standard forms, content, delivery, etc.) that will not be discussed in this article for the sake of brevity. Failure to conform to these additional requirements could result in severe consequences during litigation. The reader is strongly encouraged to both seek legal counsel and refer to RCW 4.96 for more information.)

GUIDING POLICIES

the CLAIM FILING STATUTE

“The claim filing statute is intended to provide local governments with notice of potential tort claims, the identity of the claimant, and general information about the claim.” Renner, 230 P.3d at 571 (emphasis added).

The TORT CLAIM

“The purpose of … [the tort] claim is ‘to allow government entities time to investigate, evaluate, and settle claims’ before they are sued.” Id (citing Medina v. Pub. Util. Dist. No. 1, 147 Wash.2d 303, 310, 53 P.3d 993 (2002)) (emphasis added).

LEARN MORE

April 6, 2023October 21, 2024

The Tort of Outrage

Under Washington State law, what is the tort of outrage (hereinafter, “tort of outrage” or “intentional infliction of emotional distress”)? Here’s my point of view.

Advertisement

**THE TORT OF OUTRAGE (ALSO KNOWN AS INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)**

(1) extreme and outrageous conduct,

(2) intentional or reckless infliction of emotional distress, and

(3) actual result to plaintiff of severe emotional distress.

Kloepfel v. Bokor, 66 P.3d 630, 632, 149 Wash.2d 192 (Wash. 2003) (internal citations omitted). According to the Washington State Supreme Court: “These elements were adopted from the Restatement (Second) of Torts § 46 (1965) by this court in Grimsby v. Samson, 85 Wash.2d 52, 59-60, 530 P.2d 291 (1975).” Kloepfel, 66 P.3d at 632, 149 Wash.2d 192 (footnote omitted).

LEVEL OF OUTRAGE

“Grimsby held any claim for intentional infliction of emotional distress must be predicated on behavior ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” Id. (citing Grimsby, 85 Wash.2d at 59, 530 P.2d 291 (quoting Restatement (Second) of Torts § 46 cmt. d)) (emphasis in original). Further, “[t]hat must be conduct which the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim ‘Outrageous!'” Id. (internal citations and quotation marks omitted).

MERE INSULTS, INDIGNITIES, THREATS, ANNOYANCES, PETTY OPPRESSIONS, OR OTHER TRIVIALITIES NOT ENOUGH

“Consequently, the tort of outrage does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. In this area plaintiffs must necessarily be hardened to a certain degree of rough language, unkindness and lack of consideration.” Id. (citing Grimsby, 85 Wash.2d at 59, 530 P.2d 291 (quoting Restatement (Second) of Torts § 46 cmt. d)) (internal quotation marks omitted).

OBJECTIVE SYMPTOMATOLOGY

“Many states, including … [Washington], have distinguished negligent infliction of emotional distress from intentional infliction of emotional distress by making bodily harm or objective symptomatology a requirement of negligent but not intentional infliction of emotional distress.” Id. at 633-34 (internal citations omitted).

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS REQUIRES objective symptomatology

In Washington, the tort of negligent infliction of emotional distress requires the plaintiff to prove “he has suffered emotional distress by ‘objective symptomatology,’ and the ’emotional distress must be susceptible to medical diagnosis and proved through medical evidence.'” Id. at 633, 149 Wash.2d 192 (citing Hegel v. McMahon, 136 Wash.2d 122, 135, 960 P.2d 424 (1998)). “The symptoms of emotional distress must also constitute a diagnosable emotional disorder.” Id. (internal citation and quotation marks omitted).

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESs DOES NOT REQUIRE objective symptomatology

However, Washington State courts “have never applied the objective symptomatology requirement to intentional infliction of emotional distress.” Id. at 633 (citing Berger v. Sonneland, 144 Wash.2d 91, 113, 26 P.3d 257 (2001) (“Washington cases have limited the objective symptom requirement to negligent infliction of emotional distress claims.”); see also Brower v. Ackerley, 88 Wash.App. 87, 99-100, 943 P.2d 1141 (1997) (“No Washington case has incorporated [the objective symptomatology requirement] into the tort of outrage.”)) (alteration in original) (internal quotation marks omitted). “The basic elements remain unchanged since their adoption from the Restatement in Grimsby, and … [Washington courts] have not grafted an objective symptomatology requirement to them.” Id. (citing Robel v. Roundup Corp., 148 Wash.2d 35, 51, 59 P.3d 611 (2002)).

Accordingly, the Washington State Supreme Court has found, as follows:

Quite simply, objective symptomatology is not required to establish intentional infliction of emotional distress. The general rule is firmly established that physical injury or bodily harm—’objective symptomology’—is not a prerequisite to recovery of damages where intentional (and, in most states, reckless) emotional harm has been inflicted.

Id. (citing 4 Stuart M. Speiser, Charles F. Krause & Alfred W. Gans, The American Law of Torts § 16:17, at 1076 (1987)) (internal quotation marks omitted).

CONCLUSION

A tort is a civil wrong, other than breach of contract, for which remedies may be obtained. The tort of outrage is one type of tort that is also known as intentional infliction of emotional distress; it “requires the proof of three elements: (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) actual result to plaintiff of severe emotional distress.” Kloepfel, 66 P.3d at 632, 149 Wash.2d 192 (internal citations omitted). However, this tort “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Id. Lastly, objective symptomatology is not required to establish the tort of outrage.

We invite you to read more of our blog articles concerning this topic (for purposes of this section, “IIED” means “intentional infliction of emotional distress” or “tort of outrage”):

» IIED & Supervisors*

» IIED, Vicarious Liability & Proscribing Bad Behavior*

» The Tort of Outrage and Racially Discriminatory Action

» WA Tort of Outrage: A Brief History*

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

LEARN MORE

March 30, 2023October 21, 2024

The After-Acquired Evidence Doctrine

Under Washington State law, what is the “after-acquired evidence doctrine” (hereinafter, “after-acquired evidence doctrine” or “Doctrine”) when applied to employment-discrimination law cases? Here’s my point of view.

Advertisement

THE AFTER-ACQUIRED EVIDENCE DOCTRINE

In my plaintiff’s-side, employment-discrimination law practice, clients must occasionally address the after-acquired evidence doctrine. “The ‘after-acquired evidence’ doctrine precludes or limits an employee from receiving remedies for wrongful discharge if the employer later ‘discovers’ evidence of wrongdoing that would have led to the employee‘s termination had the employer known of the misconduct.” Lodis v. Corbis Holdings, Inc., 192 Wash.App. 30, 60, 366 P.3d 1246 (Wash. app. 2015), review denied, 185 Wash.2d 1038, 377 P.3d 744(Table) (Wash. 2016) (citing Rivera v. NIBCO, Inc., 364 F.3d 1057, 1070-71 (9th Cir. 2004) (quoting McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 360-63, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995)) (internal quotation marks omitted).

Under the Doctrine, “[a]n employer can avoid back pay and other remedies by coming forward with after-acquired evidence of an employee‘s misconduct, but only if it can prove by a preponderance of the evidence that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” Id. (citing McKennon, 513 U.S. at 362-63) (emphasis added); accord Janson v. N. Valley Hosp., 93 Wn.App. 892, 971 P.2d 67 (1999) (“adopting after-acquired evidence defense as articulated in McKennon“)).

CONCLUSION

If an employer discovers misconduct by a plaintiff-employee, then the after-acquired evidence doctrine can reduce that plaintiff’s lost-wage damages. Specifically, “An employer can reduce back pay damages and preclude front pay damages by demonstrating it would have terminated the employee if it had known of the employee’s misconduct at the time.” 6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.00 (7th ed.) (citing Lodis v. Corbis Holdings, Inc., 192 Wn.App. 30, 60, 366 P.3d 1246 (2015)).

LEARN MORE

March 23, 2023October 21, 2024

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

Under Washington State court rules, how do judges generally address a motion to dismiss under CR 12(b)(6)? Here’s my point of view.

Advertisement

WASHINGTON STATE SUPERIOR COURT CIVIL RULES (CR)

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

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

…

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

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

MOTION TO DISMISS VERSUS MOTION FOR SUMMARY JUDGMENT

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

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

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

LEARN MORE

March 16, 2023October 21, 2024

Reasonable Inference of Discrimination and Similarly Situated Employees

Under the Washington Law Against Discrimination, how does a plaintiff establish similarly situated employees for purposes of raising a reasonable inference of discrimination? Here’s my point of view.

Advertisement

WASHINGTON LAW AGAINST DISCRIMINATION: DISPARATE TREATMENT

Disparate treatment is a legal theory that occurs “when an employer treats some people less favorably than others” because of membership in a protected class. See Alonso v. Qwest Communications Company*, 178 Wn.App. 734, 753-54, 315 P.3d 610 (Wash.App.Div. 2 2013). “To esablish a prima facie* disparate treatment case, a plaintiff must show that his employer simply treats some people less favorably than others because of their protected status.” Id. (citing Johnson v. Dep’t of Soc. & Health servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)) (hyperlink added).

There are various formulations for the prima facie case of disparate treatment. In Washington State, “[t]he elements of a prima facie case for disparate treatment based on protected status are not absolute but vary based on the relevant facts.” Marin v. King County*, 194 Wn.App. 795, 808 (Wash.App. Div. 1 2016), review denied, 186 Wash.2d 1028, 385 P.3d 124 (Table) (Wash. 2016) (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 362-63, 753 P.2d 517 (1988)) (remainder of footnote omitted) (hyperlinks added).

*NOTE: The link will take the reader to either our Court Slips Blog or our Williams Law Group Blog – external websites.

REASONABLE INFERENCE OF DISCRIMINATION — SIMILARLY SITUATED EMPLOYEES (COMPARATORS)

Plaintiff-employees typically use similarly-situated employees (also known as “comparators”) to show that their employer treats some employees less favorably than others based on one or more protected classes. Accordingly, to raise a reasonable inference of discrimination, a “[s]imilarly situated employee[ ] must have[:]

[1] the same supervisor,

[2] be subject to the same standards, and

[3] have engaged in the same conduct.

Id. (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 475 n.16, 98 P.3d 827 (2004); see also Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000)) (paragraph formatting added).

(NOTE: additional elements are required to establish a prima facie case of disparate treatment discrimination, however this article only addresses the “reasonable inference of discrimination” element.)

EXAMPLE: MARIN v. KING COUNTY

For example, in Marin v. King County*, 194 Wn.App. 795, 808 (Wash.App. Div. 1 2016), review denied, 186 Wash.2d 1028, 385 P.3d 124 (Table) (Wash. 2016), Plaintiff-employee Marin worked for King County as an operator at a wastewater treatment plant. Therein, Marin alleged King County unlawfully discriminated against him based on a variety of incidents. In one incident, Marin “did not follow the correct procedure to ‘lock out’ and ‘tag out’ a sewage pump.” Id. at 803. Consequently, Marin’s supervisor, Read, issued Marin a Teach/Lead/Coach memo, or TLC. “A TLC is not discipline, though management may base future discipline on a TLC.” Id. “Read saw it as a basic error for someone with Marin’s experience. Marin perceived Read to be yelling at him and became anxious.” Id. “Marin eventually gave notice he would retire in May 2011.” Id. at 804.

trial court

Thereafter, “Marin sued the County in July 2011[,] alleg[ing] six causes of action: disparate treatment, hostile work environment, and failure to accommodate disabilities under the Washington Law Against Discrimination (WLAD), wrongful discharge, and both intentional and negligent infliction of emotional distress.” Id. (footnote omitted). Inter alia, “[t]he trial court dismissed Marin’s disparate treatment claim on summary judgment.” Id. at 801.

court of appeals — division one

Marin appealed the dismissal of his lawsuit. See id. at 801. On appeal, Division One, held that Marin failed to raise a reasonable inference of discrimination.

Different Supervisor

“Marin … contended the County treated him differently than a nonprotected employee, … Burton, who also made a lockout error. ” Id at 810. However, the Court found that “[e]ven if Marin had shown Burton’s error to be analogous to his own, Burton is still not a valid comparator because he worked under a different supervisor.” Id. (footnote omitted).

same treatment

The Court then found that “the record does not show that the County treated Marin differently than Burton, who also received a TLC–albeit an oral one–after his error.” Id. It reasoned: “A reasonable employee would not interpret Marin’s TLC as setting ‘impossible or terrifying unique performance standards’ or threatening termination.”

HOLDING

Accordingly, the Court held that “the trial court properly dismissed Marin’s claim of disparate treatment based on protected status.” Id. at 810-11.

*NOTE: The link will take the reader to our Court Slips Blog – an external website.

READ OUR RELATED ARTICLES

» Definition of Prima Facie Case**

» Disparate Treatment

» Disparate Treatment: Bona Fide Occupational Qualification**

» Disparate Treatment via Hostile Work Environment**

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

» Prima Facie Case: The Replacement Element**

» The Prima Facie Case: Disparate Treatment via Direct Evidence

» WLAD: Disparate Treatment via Hostile Work Environment

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

LEARN MORE

February 16, 2023October 21, 2024

Canon of Administrative-Agency Interpretations

Under Washington State canons of statutory construction, what is the canon of administrative-agency interpretations? Here’s my point of view.

Advertisement

THE CANON OF ADMINISTRATIVE-AGENCY INTERPRETATIONS

According to the canon of administrative-agency interpretations:

Generally, administrative agency interpretations of statutes are given great weight.

Magula v. Benton Franklin Title Co., Inc., 131 Wn.2d 171, 177, 930 P.2d 307 (Wash. 1997) (citing Doe v. Boeing Co., 121 Wash.2d 8, 15, 846 P.2d 531 (1993) (“[The Washington Law Against Discrimination,] RCW 49.60[,] does not define ‘handicap’; deference is given by court to Human Rights Commission administrative rule defining ‘handicap'”).

LEARN MORE

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

-gw

THE WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

STATUTE OF LIMITATIONS

Definition

THE WLAD Statute of Limitations (3 years)

FURTHER SUPPORT

WARNING

LEARN MORE

WLAD STATUTE OF LIMITATIONS: EQUITABLE TOLLING

THE WLAD

STATUTE OF LIMITATIONS

eQUITABLE TOLLING (WA state): tHE MILLAY STANDARD

LEARN MORE

ILLEGAL CONTRACTS IN WASHINGTON STATE

EXAMPLE: STATE v. PELKEY

CONCLUSION

LEARN MORE

WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): EMPLOYMENT

WA STATE HUMAN RIGHTS COMMISSION (WSHRC): CERTAIN FUNCTIONS, POWERS, AND DUTIES

RCW 49.60.120

Certain powers and duties of commission.

READ OUR RELATED ARTICLES

LEARN MORE

LOCAL GOVERNMENT TORT-CLAIM FILING STATUTE

RCW 4.96.010 Tortious conduct of local governmental entities—Liability for damages.

THE 60-DAY REQUIREMENT

RCW 4.96.020 Tortious conduct of local governmental entities and their agents—Claims—Presentment and filing—Contents.

GUIDING POLICIES

the CLAIM FILING STATUTE

The TORT CLAIM

LEARN MORE

THE TORT OF OUTRAGE (ALSO KNOWN AS INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)

LEVEL OF OUTRAGE

MERE INSULTS, INDIGNITIES, THREATS, ANNOYANCES, PETTY OPPRESSIONS, OR OTHER TRIVIALITIES NOT ENOUGH

OBJECTIVE SYMPTOMATOLOGY

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS REQUIRES objective symptomatology

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESs DOES NOT REQUIRE objective symptomatology

CONCLUSION

READ MORE

LEARN MORE

THE AFTER-ACQUIRED EVIDENCE DOCTRINE

CONCLUSION

LEARN MORE

WASHINGTON STATE SUPERIOR COURT CIVIL RULES (CR)

MOTION TO DISMISS VERSUS MOTION FOR SUMMARY JUDGMENT

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

LEARN MORE

WASHINGTON LAW AGAINST DISCRIMINATION: DISPARATE TREATMENT

REASONABLE INFERENCE OF DISCRIMINATION — SIMILARLY SITUATED EMPLOYEES (COMPARATORS)

EXAMPLE: MARIN v. KING COUNTY

trial court

court of appeals — division one

Different Supervisor

same treatment

HOLDING

READ OUR RELATED ARTICLES

LEARN MORE

THE CANON OF ADMINISTRATIVE-AGENCY INTERPRETATIONS

LEARN MORE

RCW 4.96.010
Tortious conduct of local governmental entities—Liability for damages.

RCW 4.96.020
Tortious conduct of local governmental entities and their agents—Claims—Presentment and filing—Contents.

**THE TORT OF OUTRAGE (ALSO KNOWN AS INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)**