Under the Washington Law Against Discrimination (WLAD), RCW 49.60, how does one establish a prima facie case of retaliatory discharge? Here’s my point of view.
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RETALIATORY DISCHARGE (WA STATE): THE PRIMA FACIE CASE
“In order to establish a prima facie case of retaliatory discharge, … [a plaintiff] must show[:]
(1) he engaged in a statutorily protected activity;
(2) he was discharged or had some adverse employment action taken against him; and
(3) retaliation was a substantial motive behind the adverse employment action.
Davis v. West One Automotive Group, 140 Wn.App. 449, 460 (Div. 3 2007), review denied, 163 Wn.2d 1039 (Wash. 2008) (internal citation omitted) (emphasis, hyperlinks, and paragraph formatting added).
EXAMPLE: DAVIS v. WEST ONE AUTOMOTIVE GROUP
In Davis v. West One Automotive Group, the Washington State Court of Appeals (division 3) determined that plaintiff Davis established a prima facie case of retaliatory discharge based, in part, on the following:
[1] … Davis, an African American, was hired as a salesman for West One in February 2005 and terminated in July 2005.
[2] During the course of his five-month employment, Mr. Davis experienced racially charged comments in the workplace.
[3] On one occasion, West One manager and Mr. Davis’s supervisor … asked Mr. Davis if he knew “why blacks have a day off on Martin Luther King Day?” When Mr. Davis said he did not know, … [his supervisor] responded, “Because they shot and killed his black ass.” Mr. Davis told … [his supervisor] the comment was inappropriate and not to make such a comment again.
[4] Another time, … [Mr. Davis’ supervisor] stated, “Blacks on the eastside, Mexicans on the west; hell I don’t know.” Mr. Davis was offended, and told … [his supervisor] so.
[5] A third incident involved … [Mr. Davis’ supervisor] walking by Mr. Davis’s desk, kicking it and remarking, “What’s up, bitc[#].” Mr. Davis was offended, regarding “bitc[#]” as a derogatory term some African American men use to refer to each other. Mr. Davis again told … [his supervisor] he was offended.
[6] [A] [f]ellow sales employee … also made comments that Mr. Davis found racially offensive. On an occasion when Mr. Davis had customers in the finance office and his telephone rang, … [the co-worker] stopped him from answering stating, “Hey, Buckwheat, you can’t get that call.” Mr. Davis was offended and asked … [the co-worker] to refer to him by name.
…
[7] Mr. Davis complained to West One Human Resources about … [his co-worker’s] “Buckwheat” comment. No disciplinary action was taken.
[8] At a subsequent staff meeting, [Mr. Davis’ supervisor] discussed generally with the entire staff that, “no use of any type of insensitive name, nickname or not, would be tolerated.”
[9] Because no action had been taken against … [Mr. Davis’ co-worker] and because he regarded … [his supervisor] as “the worst offender of racial discrimination,” Mr. Davis did not complain again.
Id. at 453-54 (internal citations omitted).
In the Court of Appeals, “Mr. Davis claim[ed] he was fired for reporting hostile work environment.” Id. at 460 (hyperlink added). The Court considered, inter alia, the foregoing facts and found, in part, as follows:
This is a protected activity covered by statute and his termination qualifies as an adverse employment action. It is unclear if retaliation was a substantial motive behind the termination. The evidence presented at summary judgment would support a finding either way on the causation issue. This is a jury question.
Id. (internal citations omitted). Thus, the Court determined that plaintiff Davis established a prima facie case of retaliatory discharge and–after applying the McDonnel Douglas Burden-Shifting Framework–concluded that “Summary judgment dismissal of Mr. Davis’s … claim was not appropriate.” Id. at 461.
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Unlawful Retaliation: Adverse Employment Action
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** (NOTE: This is an external link that will take you to our Williams Law Group Blog.)
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