The Rundown

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FRCP 35 Exams Based on Emotional Distress (9th Circuit)

FRCP 35 Exams Based on Emotional Distress (9th Circuit)

Under federal law, does a plaintiff’s claim of emotional distress place his/her mental condition in controversy for purposes of FRCP 35 exams? Here’s my point of view.

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

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THE GENERAL RULE

If a plaintiff objects to a FRCP 35 exam, the court has discretion to enter an order compelling examination only if the employer can establish:

(A) that a physical or mental condition of the person sought to be examined is “in controversy,” and

(B) that “good cause” exists.

See Houghton v. M & F Fishing, Inc., 198 F.R.D. 666, 667 (2001) (internal citations and quotation marks omitted).

Courts in jurisdictions throughout the country are divided on the issue as to whether a claim of emotional distress places the plaintiff’s mental condition at issue (in controversy). But the modern trend in courts is to increasingly find that it does not.

FRCP 35 EXAMS BASED ON EMOTIONAL DISTRESS:  9TH CIRCUIT

The general position of courts in the 9th Circuit appears to be that a claim for emotional distress damages, by itself, is not sufficient to place the plaintiff’s mental condition in controversy for purposes of FRCP 35(a). Ford v. Contra Costa County, 179 F.R.D. 579, 580 (N.D.Cal. 1998) (referencing, Turner v. Imperial Stores, 161 F.R.D. 89, 92-97 (S.D.Cal.1995) (thoroughly surveying the relevant case law, distinguishing several unconventional cases including Smedley v. Capps, Staples, Ward, hastings & Dodson, 820 F.Supp. 1227 (N.D.Cal.1993), and determining not to set Smedly, inter alia, as precedent)) (internal quotation marks omitted).

Instead, the trend for 9th Circuit courts is as follows:

[T]he movant must also demonstrate that (1) the plaintiff has pled a cause of action for intentional or negligent infliction of emotional distress; (2) the plaintiff has alleged a specific mental or psychiatric injury; (3) the plaintiff has pled a claim for unusually severe emotional distress; (4) the plaintiff plans to offer expert testimony to support a claim of emotional distress and/or (5) the plaintiff has conceded that his or her mental condition is ” in controversy” for purposes of FRCP 35(a).

Id. (internal citation omitted).

These courts have further found that a Plaintiff merely seeking damages in excess of a million dollars for humiliation, mental anguish, and emotional distress does not justify a request for a mental examination. Turner v. Imperial Stores, 161 F.R.D. at 97.

GARDEN VARIETY EMOTIONAL DISTRESS

Thus, for example, a plaintiff seeking “garden variety emotional distress” damages in excess of one million dollars, pursuant to claims solely under the Civil Rights Act of 1964, may argue that he/she is not subject to FRCP 35 examination, because his/her mental condition is not in controversy (provided he/she does not satisfy the additional above mentioned requirements set forth in Ford v. Contra Costa County, 179 F.R.D. at 580 (N.D.Cal. 1998), supra); but whoever asserts this type argument should be prepared to fight it out in Court — the defendant(s) will likely file a motion.

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

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The Same Actor Inference Defense

The Same Actor Inference Defense

Under federal law, what is the “same actor inference” defense? Here’s my point of view.

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

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SAME ACTOR INFERENCE DEFENSE

The “Same-Actor-Inference” (Inference) is a potential employer defense to a claim of employment discrimination under federal law. It is applicable where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time; in that case, a strong inference arises that there was no discriminatory action. Coghlan v. American Seafoods Co. LLC, 413 F.3d 1090, 1096 (9th Cir. 2005) (internal quotation marks and citations omitted).

The Inference is based on the principle that an employer’s initial willingness to hire the employee-plaintiff is strong evidence that the employer is not biased against the protected class to which the employee belongs. Id. The Inference can be further described in terms of scope and proximity.

SCOPE

The scope of the Inference makes it is also applicable where the employee was not actually fired but merely offered a less desirable job assignment. Id. Moreover, the Same-Actor Inference is neither a mandatory presumption nor a mere possible conclusion for the jury to draw; it is a strong inference that a court must take into account on a summary judgment motion. Id. at 1098.

Thus, it is not valid to argue that the Inference is not a proper consideration at summary judgment.

PROXIMITY

As far as proximity: for the Inference to apply, it is not required that the alleged discrimination take place within a “short” period of time after the favorable action; for example, a 3 year gap in time was held to be short enough in time for the Inference to apply. Id. at 1097 (citing Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir.2000) (basing affirmance of summary judgment in an employment discrimination case in part on the fact that the plaintiff “was fired by the same man who had hired him three years earlier”)).

However, proximity becomes a potential plaintiff rebuttal when there is an allegation that unlawful bias developed by employer-actor after the favorable action and proximate to the negative employment action. See id.

The bottom line is that the Inference, if properly raised by the employer, is difficult for a plaintiff to overcome.

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

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Top 3 Reasons Unlawful Retaliation Claims Fail

Top 3 Reasons Unlawful Retaliation Claims Fail

In Washington State, unlawful retaliation claims fail for a variety of reasons. Unlawful retaliation is a form of unlawful employment discrimination in Washington State.

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

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WASHINGTON LAW AGAINST DISCRIMINATION: UNLAWFUL RETALIATION

The Washington Law Against Discrimination (WLAD) prohibits an employer from retaliating against a person for opposing a discriminatory practice forbidden by WLAD or for participating in a proceeding to determine whether discrimination occurred. See RCW 49.60.210.

To establish a prima facie claim of unlawful retaliation, a plaintiff must show that (1) [he/she] engaged in statutorily protected activity, (2) [his/her] employer took an adverse employment action against [him/her], and (3) there is a causal link between the activity and the adverse action. Alonso v. Qwest Communications Co., 178 Wn.App. 734, 754, 315 P.3d 610 (2013).

TOP 3 REASONS UNLAWFUL RETALIATION CLAIMS FAIL

Here’s my opinion of the top 3 reasons why unlawful retaliation claims fail in Washington State:

#3 – No Causation

A plaintiff bringing suit based on unlawful retaliation, RCW 49.60.210, must prove causation by showing that retaliation was a substantial factor motivating the adverse employment decision. Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79, 96 (Wash. 1991).

Two common ways (but not the only ways) to establish causation include (1) proximity in time, and (2) abrupt change in performance reviews. It should be clear how an abrupt change in performance reviews from satisfactory to poor can support an argument for causation; however, “proximity in time” requires further explanation.

“Proximity in time” supports an argument for causation if the plaintiff can show the employer’s knowledge that the plaintiff engaged in protected activities and that the proximity in time between the protected action and the allegedly retaliatory employment action is minimal.

This element can pose a problem in litigation if the employee-plaintiff is unable to argue either “proximity in time” or “change in performance reviews”, and there is no other evidence that retaliation was a substantial factor motivating the adverse employment decision.

#2 – No Adverse Employment Action

To establish an adverse employment action, “the employee must show that a reasonable employee would have found the challenged action materially adverse, meaning that it would have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Boyd v. State, 187 Wn.App. 1, 13, 349 P.3d 864 (Div. 2 2015) (internal citations and quotation marks omitted). It includes but is not limited to a demotion or adverse transfer, or a hostile work environment. Id. (internal citations and quotation marks omitted).

The problem typically occurs when the employee alleges an adverse employment action that is merely bothersome; because a viable “adverse employment action involves a change in employment that is more than an inconvenience or alteration of one’s job responsibilities.” Alonso v. Qwest Communications Co., 178 Wn.App. at 746.

#1 – No Protected Activity

An employee engages in WLAD-protected activity when he opposes employment practices forbidden by antidiscrimination law or other practices that he reasonably believed to be discriminatory. Id. at 753.

However, a general complaint about an employer’s unfair conduct does not rise to the level of protected activity in a discrimination action under WLAD absent some reference to the plaintiff’s protected status. Id.

A common problem that occurs is when an employee-plaintiff either completely fails to complain of discrimination to the employer or fails to properly complain of discrimination to the employer by omitting reference to one or more specific protected classes.

READ MORE ARTICLES

We invite you to read more of our blog articles concerning this topic:

Adverse Employment Actions: A Closer Look

Definition of Prima Facie Case*

Employment-Discrimination Hotlines & Unlawful Retaliation

The McDonnell Douglas Burden Shifting Framework*

The Prima Facie Case: Unlawful Retaliation

Top 3 Reasons Unlawful Retaliation Claims Fail

Top 3 Causation Standards: Unlawful Retaliation

Unlawful Retaliation: Adverse Employment Action

Unlawful Retaliation and the Prospective Employer

Unlawful Retaliation: The Actual-Knowledge Standard

Unlawful Retaliation: The Causal Link

Unlawful Retaliation: The Functionally-Similar Test

Unlawful Retaliation: Statutorily Protected Activity

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

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

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The Canon of Statutory Parallelism

The Canon of Statutory Parallelism

Under Washington State canons of statutory construction, what is statutory parallelism? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

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

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THE CANON OF STATUTORY PARALLELISM

Statutory parallelism is a term that I’ve coined for the following assumption commonly held by Washington State courts:

[W]hen the legislature uses the same word in different parts of a single statutory scheme, that word has the same meaning throughout.

Certification From the United States District Court for the Eastern District of Washington in Zhu v. North Central ESD 171, 404 P.3d 504, 509 (Wash. 2017) (citing Champion v. Shoreline Sch. Dist. No. 412, 81 Wn.2d 672, 676, 504 P.2d 304 (1972)).

EXAMPLE: CERT. FROM U.S. DIST. CT. FOR EAST DIST. OF WA IN ZHU v. NORTH CENTRAL ESD 171

In Zhu, the WA State Supreme Court decided that the Washington Law Against Discrimination (i.e., RCW 49.60.210(1)) creates “a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer[.]”

This was an issue of first impression. As part of its decision, the WA Court evaluated the Washington Law Against Discrimination (WLAD) definition of the term “employer.” In so doing, the Court concluded:

For purposes of WLAD, an ’employer’ is broadly defined as ‘any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit. . . .

This definition clearly includes prospective employers, and nothing about the statutory context indicates that ‘any employer’ means something different for purposes of the antiretaliation statute than it does for the purposes of the rest of WLAD. See Champion v. Shoreline Sch. Dist. No. 412, 81 Wn.2d 672, 676, 504 P.2d 304 (1972) (we assume that when the legislature uses the same word in different parts of a single statutory scheme, that word has the same meaning throughout).

Zhu Cert., 404 P.3d at 509 (emphasis added).

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

-gw

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Washington Priority of Action Rule: Same Relief

Washington Priority of Action Rule: Same Relief

Under the Washington Priority of Action Rule, how do Washington State courts determine if the relief is the same? Here’s my point of view.

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

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PRIORITY OF ACTION RULE

The Washington Priority of Action Rule (Rule) will only apply if the two relevant cases involve identical (1) subject matter, (2) parties, and (3) relief. Am. Mobile Homes of Wash. Inc. v. Seattle-First Nat’l Bank, 115 Wn.2d 307, 317, 796 P.2d 1276 (1990).

These factors must be established before the Rule should be applied. Id. The identity of the above elements must be such that a decision in one tribunal would bar proceedings in the other because of res judicata. State ex rel. Evergreen Freedom Foundation v. Washington Educ. Ass’n, 111 Wn.App. 586, 607, 49 P.3d 894 (Div. 2 2002).

If the Rule applies, the court which first gains jurisdiction of a cause retains the exclusive authority to deal with the action until the controversy is resolved. Am. Mobile Home, 115 Wn.2d at 316-17.

ELEMENT #3: IDENTICAL RELIEF

The Washington State Supreme Court has established the following factors to determine if “the relief is the same” for purposes of the Washington Priority of Action Rule:

(1) whether the form of relief available to each tribunal is the same (FORM OF RELIEF); and

(2) whether the first tribunal can resort to another to equalize any disparity in the amount of relief available between the first and second lawsuits (EQUALIZE DISPARITY)?

See, State ex rel. Evergreen Freedom Found., 111 Wn. App. at 607, 49 (holding that the remedy was the same in both suits, because the type of relief available to both courts was the same, and because the administrative agency could otherwise seek relief in superior court in the first case to equalize any disparity in the amount of relief available in the administrative tribunal).

EXAMPLE: EVERGREEN FREEDOM FOUND v. WASHINGTON EDUC. ASS’N

In Evergreen Freedom Found. v. Washington Educ. Ass’n, plaintiff attempted to amend its citizens lawsuit in superior court by adding claims that were contemporaneously being pursued by an administrative agency with statutory authority to preempt plaintiffs’ lawsuit; plaintiff sought, inter alia, the same form of remedy (i.e., a fine) as the administrative agency based on the same statute.

The court ruled that the relief was the same in both actions and upheld the trial court’s application of the priority of action rule, because the relief in both cases was a monetary fine pursuant to RCW 42.17.395(4), and because any disparity in the amount of relief available could be eliminated if the administrative tribunal ushered the claim to superior court.

The court then analyzed res judicata and concluded jurisdiction in the second court was improper under Washington Priority of Action Rule. State ex rel. Evergreen Freedom Found. v. Washington Educ., 111 Wn. App. 586, 49 P.3d 894 (2002).

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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.

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Affirmative and Negative Defenses

Affirmative and Negative Defenses

Under federal law, are defendants allowed to plead “negative” defenses in answer to a federal complaint in federal court? Here’s my point of view.

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

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AFFIRMATIVE DEFENSES

“An affirmative defense, under the meaning of Fed.R.Civ.P. 8(c), is a defense that does not negate the elements of the plaintiff’s claim, but instead precludes liability even if all of the elements of the plaintiff’s claim are proven.” Lane v. Page, 272 F.R.D. 581, 598 (D.N.M. 2011) (internal citation omitted) (hyperlinks added). The burden for establishing affirmative defenses generally lies on the defendant. Id. (internal citation omitted).

NEGATIVE DEFENSES

However, “negative” defenses are merely rebuttal to plaintiff’s claims and should be stricken; the courts have held these so-called affirmative defenses (or negative defenses) simply provide a basis to negate an element of the prima facie case for relief and are restatements of denials present in earlier parts of the complaint. See id. (citing Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, 718 F.Supp.2d 1167, 1174 (N.D. Cal. 2010) (striking eight “negative” defenses); see Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir.2002) (“A defense which demonstrates that plaintiff has not met its burden of proof [as to an element plaintiff is required to prove] is not an affirmative defense.”(citing Flav-O-Rich v. Rawson Food Service, Inc., 846 F.2d 1343, 1349 (11th Cir.1988))) (internal quotation marks omitted) (hyperlinks added).

CONCLUSION

It appears that under federal law, defendants may plead “negative” defenses in answer to a federal complaint in federal court, but such negative defenses are not affirmative defenses and should be stricken as a defense. A fundamental consideration is whether the time, expense, and risk in bringing the motion to strike is outweighed by the benefit. Obviously, that is only a question for a party or party representative to answer relative to their particular matter.

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

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Top 3 Reasons Disparate Treatment Claims Fail

Top 3 Reasons Disparate Treatment Claims Fail

Under the Washington Law Against Discrimination (WLAD), disparate treatment (also known as “classic discrimination”) is a form of unlawful employment discrimination.

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

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WASHINGTON LAW AGAINST DISCRIMINATION: DISPARATE TREATMENT

WLAD makes it unlawful for an employer to discriminate against any person in compensation or in other terms or conditions of employment because of membership in certain protected classes. See Blackburn v. Department of Social and Health Services, 186 Wn.2d 250, 258, 375 P.3d 1076 (2016) (internal quotation marks omitted).

Disparate treatment is the most easily understood type of discrimination. Id. (internal quotation marks omitted). And “the 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, 378 P.3d 203, (Div. 1 2016) (referencing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 362-63, 753 P.2d 517 (1988)) (hyperlink added).

To learn more about protected classes and disparate treatment, view our YouTube videos:

 

MY TOP 3 REASONS DISPARATE TREATMENT CLAIMS FAIL

Here are my top 3 reasons WLAD disparate treatment claims fail (based on my point of view as an employment discrimination attorney in Washington State):

#3 – Failed to Perform Satisfactorily

One of the elements that a plaintiff must typically prove to establish a prima facie case of disparate treatment discrimination is that he/she was performing satisfactorily. Marin v. King County, 194 Wn.App. 795, 808-09, 378 P.3d 203, (Div. 1 2016) (citing Anica v. Wal-Mart Stores, Inc., 120 Wn.App. 481, 488, 84 P.3d 1231 (2004)). A history of, inter alia, poor performance reviews, suspensions, and/or write-ups, can derail a disparate treatment case.

#2 – Failed to Suffer an Adverse Employment Action

Generally, “this means a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id. (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)) (internal quotation marks omitted). Keep in mind that this is merely a sample and not an exhaustive list.

Plaintiffs alleging disparate treatment often find their claim dismissed at summary judgment, because they failed to prove that they suffered an associated adverse employment action.

#1 – Failed to Raise Reasonable Inference of Unlawful Discrimination

The plaintiff must show that the unlawful actions occurred under circumstances that raise a reasonable inference of unlawful discrimination. Id. (citing Anica v. Wal-Mart Stores, Inc., 120 Wn.App. 481, 488, 84 P.3d 1231 (2004)). The plaintiff must typically point to evidence that the employer took an adverse action against the plaintiff because of his/her protected class. See id. at 810. One way to prove this is by showing that similarly situated employees (also known as “comparators”) outside of the plaintiff’s protected class were treated more favorably.

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

–gw

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Behind Closed Doors: WLAD & ESD Appeals

Behind Closed Doors: WLAD & ESD Appeals

Under Washington State law, may an employment discrimination plaintiff use favorable findings from a previous unemployment benefits appeal against the associated defendant employer, when pursuing a claim under Washington Law Against Discrimination (WLAD)? Here’s my point of view.

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

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A COMMON ISSUE

Occasionally, one of my employment discrimination clients will vigorously attempt to convince me that they received favorable findings against their employer during their unemployment benefits appeal conducted through the Washington State Office of Administrative Hearings; and that the findings will help them win their subsequent discrimination lawsuit under WLAD. Unfortunately, I usually have bad news for those clients.

Stated differently, the issue is whether findings made by an administrative law judge (ALJ) during a Washington State unemployment benefits appeal hearing may be admitted in a separate employment discrimination lawsuit outside the scope of Title 50 RCW between an individual and the individual’s present or prior employer?

WA STATE EMPLOYMENT SECURITY DEPARTMENT

The Washington State Employment Security Department (ESD) was created in 1939. Its mission is to “partner to connect employers and job seekers – supporting transitions to new jobs and empowering careers.”

If an individual applies for unemployment benefits through the ESD and is denied; then the individual can request an appeal. In that case, the ESD will forward the appeal to the Washington State Office of Administrative Hearings (OAH) which is not part of the ESD. The OAH will then assign an administrative law judge to hear the case.

TITLE 50 RCW

The Washington State laws relating to the ESD are contained in Title 50 RCW, and the relevant law states as follows:

Any finding, determination, conclusion, declaration, or final order made by the commissioner, or his or her representative or delegate, or by an appeal tribunal, administrative law judge, reviewing officer, or other agent of the department for the purposes of Title 50 RCW, shall not be conclusive, nor binding, nor admissible as evidence in any separate action outside the scope of Title 50 RCW between an individual and the individual’s present or prior employer before an arbitrator, court, or judge of this state or the United States, regardless of whether the prior action was between the same or related parties or involved the same facts or was reviewed pursuant to RCW 50.32.120.

RCW 50.32.097 (emphasis and hyperlink added).

CONCLUSION

Findings made by an administrative law judge during a Washington State unemployment benefits appeal hearing are generally not admissible in a subsequent WLAD employment discrimination lawsuit (before an arbitrator, court, or judge) outside the scope of Title 50 RCW between the employee and the employee’s present or prior employer.

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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.

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Property Interests in Continued Employment: WA State

Property Interests in Continued Employment: WA State

In Washington State, do Washington State civil service employees–dischargeable only for cause–have property interests in continued employment? Here’s my point of view.

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

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GOLDBERG TWO-STEP PROCESS

In Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), “[t]he Supreme Court … enunciated a two-step process for analyzing cases involving deprivation of a governmental benefit” in violation of due process, as follows:

1. it must first be ascertained whether the interest at issue is a constitutionally protected property or liberty interest; and

2. if the interest is a protected one, the court must determine if the deprived beneficiary has been afforded due process.

See Belnap v. Chang, 707 F.2d 1100, 1102 (9th Cir. 1983) (internal citations and quotation marks omitted).

In relation to element 1 above, “property interests are not created by the Constitution, they are created, and their dimensions are defined, by existing rules or understandings that stem from an independent source, such as state law. . . .” Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494, 53 USLW 4306 (1985) (emphasis added) (internal citations omitted).

RELEVANT WA STATE LAW

Accordingly, the Washington State Supreme Court has held that “protected property interests can arise from express or implied contracts for continued employment, objective representations of tenure, . . . or even collective bargaining agreements providing for continued employment.” Danielson v. City of Seattle, 108 Wn.2d 788, 796, 742 P.2d 717 (1987) (internal citations omitted). As a result, “constitutionally protected property interests may arise in public employment where civil service laws provide an express or implied contract for continued employment.” Id. (internal citations and quotation marks omitted).

CONCLUSION

Thus, I believe that civil service employees dischargeable only for cause have protected property interests in continued employment. See id. at 796-97 (internal citations omitted).

Example: Danielson v. City of Seattle

For example, in Danielson, a Seattle police officer committed theft and was subsequently discharged. The Seattle Municipal Code and the Seattle City Charter established that no civil service employees may be discharged from employment except for cause. As a result, the court held that the police office had a property interest in continued employment. Id.

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

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WLAD Civil Suits & Administrative Actions

WLAD Civil Suits & Administrative Actions

Under the Washington Law Against Discrimination (WLAD), may plaintiffs bring private civil suits through administrative actions and associated appeals? Here’s my point of view.

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

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THE WASHINGTON LAW AGAINST DISCRIMINATION

“Washington’s law against discrimination, chapter 49.60 RCW, is a broad remedial statute, the purpose of which is to eliminate and prevent discrimination on the basis of” specific protected classes. Rhoades v. Department of Labor and Industries, 143 Wn.App. 832, 181 P.3d 843 (Wash.App. Div. 3 3008) (citing RCW 49.60.010).

THE CIVIL SUIT REQUIREMENT

“[WLAD] declares that the right to be free from such discrimination is a civil right enforceable by private civil action by members of the enumerated protected classes.” Id. (citing RCW 49.60.030(1), (2)) (emphasis added).

The issue is whether an administrative proceeding is considered a civil action for purposes of WLAD claims. The Washington State Court of Appeals addressed this issue in Rhoades v. Department of Labor and Industries. Id.

EXAMPLE: RHOADES v. DEPARTMENT OF LABOR AND INDUSTRIES

In Rhoades, plaintiff Tammy Rhoades “filed a claim with the Department [of Labor and Industries] after she was injured in the course of employment[.]” Rhoades, 143 Wn.App. at 836. “The Department awarded her a permanent partial disability benefit.” Id. She appealed, and “in March 2001, the Department determined that Ms. Rhoades was totally disabled and she was placed on the pension rolls.” Id. “The Department affirmed this order after reconsideration in September 2002.” Id.

However, “Ms. Rhoades disagreed with the Department’s calculation of her monthly pension amount [and] appealed the September 2002 pension order to the Board of Industrial Appeals (Board).” Id. In 2004, “the Board found that the Department’s September 2002 order was correct” except for a small interest calculation. Id. at 837.

Plaintiff Rhoades “appealed to the superior court, which affirmed the Board’s order.” Id. She then appealed to Division 3 of the Washington State Court of Appeals wherein she included, inter alia, a claim that the Department violated the Washington Law Against Discrimination, RCW 49.60. Id. at 835-36. The court of appeals found that “an administrative action and appeal is an inappropriate vehicle for” claims under RCW 49.60. Id. at 845 (emphasis added). “[A] civil suit is required.” Id.

CONCLUSION

Under the Washington Law Against Discrimination (WLAD), plaintiffs cannot bring private civil suits through administrative actions and associated appeals.

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