Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607 (Wash.App. Div. 1 1984)

This is a case summary of Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607, 676 P.2d 545 (Wash.App. Div. 1 1984). “Simon Lewis appeal[ed] from the dismissal of his employment discrimination action against Lockheed Shipbuilding, alleging that the trial court applied an erroneous statute of limitations. [The Court of Appeals] … agree[d] and reverse[d] the order of dismissal.” Id. at 608. The subjects addressed herein include the following:

» STATUTE OF LIMITATIONS

» WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

(NOTE: this article does not address the additional issue concerning the continuing-violations doctrine.)

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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Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607, 676 P.2d 545 (Wash. App. 1984) — **Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607, 676 P.2d 545 (Wash.App. Div. 1 1984)**

case summarY – 7 PRIMARY Facts:

[1] Lewis, a black male, was hired on October 12, 1977, by Lockheed Shipbuilding and Construction Company to work on a cable crew.

[2] It appears that Lewis suffered from hypertension, and that his doctor recommended that he be placed on light duty. [(Footnote omitted)].

[3] The collective bargaining agreement provided that an employee would be regarded as having voluntarily terminated his employment following three unexplained absences.

[4] Because Lewis failed to report to work for three consecutive workdays or more without explanation, Lockheed advised Lewis’ collective bargaining representative on May 4, 1978 that Lewis would not be rehired.

[5] It also appears that Lewis made several unsuccessful attempts to regain employment at Lockheed, but was turned down because he was placed in a “no re-hire” category.

[6] On March 6, 1981, Lewis sued Lockheed, alleging that his dismissal was the result of illegal discrimination under Washington law based on his disability and/or race.

[7] The trial court, however, granted Lockheed’s motion to dismiss on the ground that Lewis’ claim was barred by the 2-year statute of limitations, RCW 4.16.130.

Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607, 608-09, 676 P.2d 545 (Wash.App. Div. 1 1984) (footnote omitted) (paragraph formatting and hyperlink to external website added).

ISSUE #1: Under the Washington Law Against Discrimination (RCW 49.60), do courts apply a 3-year statute of limitations to actions pursuant to RCW 4.16.080(2)?

[1-1] THE WASHINGTON LAW AGAINST DISCRIMINATION (WLAD) DOES NOT HAVE ITS OWN STATUTE OF LIMITATIONS

“RCW 49.60, the Washington Law Against Discrimination, does not have its own statute of limitations.” Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607, 609, 676 P.2d 545 (Wash.App. Div. 1 1984) (hyperlink to external website added).

[1-2] TWO-YEAR STATUTE OF LIMITATIONS (“CATCH-ALL STATUTE”) — RCW 4.16.130

“RCW 4.16.130 provides:

Actions for relief not otherwise provided for. An action for relief not herein[before] … provided for, shall be commenced within two years after the cause of action shall have accrued.

Lewis, 36 Wn.App. at 609, 676 P.2d 545 (hyperlink to external website added). This is also known as the “catch-all” statute. See id at 611.

[1-3] THREE-YEAR STATUTE OF LIMITATIONS — RCW 4.16.080(2)

“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 added).

[1-3a] Three-Year Statute of Limitations Applies to Invasions to Plaintiff’s Person or Property Rights

“RCW 4.16.080(2) applies only to certain direct invasions of a plaintiff’s person or property rights.” Lewis, 36 Wn.App. at 611 (citing Noble v. Martin, 191 Wash. 39, 46, 70 P.2d 1064 (1937); Peterick v. State, 22 Wash.App. 163, 168-69, 589 P.2d 250 (1977)) (hyperlink to external website added). Thus, “where the defendant directly invades a legally protected interest of the plaintiff, the 3-year statute applies.” Id. at 612.

[1-3b] The WLAD Liberal-Construction Mandate Supports 3-Year Statute of Limitations

“[S]upport for applying the 3-year statute is found in the Legislature’s directive that RCW 49.60 be liberally construed.” Lewis, 36 Wn.App. at 613 (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).

[1-4] THE CASELAW (4 CASES)

In this case, the Court evaluated the following five cases to resolve the issue concerning statute of limitations:

[1-4a] Canon v. Miller

» “In Cannon [v. Miller, 22 Wash.2d 227, 155 P.2d 500, 157 A.L.R. 530 (1045)], the plaintiffs sought to recover unpaid overtime wages under the Fair Labor Standards Act (FLSA), 29 U.S.C.A. § 201, et seq. (West 1978).” Lewis, 36 Wn.App. at 609 (hyperlink to external website added).

» “Because the FLSA does not have its own statute of limitations, the statute of limitations of the state where the action was brought was applicable.” Id.

» “The plaintiffs contended that the 3-year contract statute of limitations applied, and the defendants relied on the 2-year catch-all statute.” Id. at 609-10.

» “The court recognized that although the FLSA in effect created an implied obligation in the employment contract to pay overtime wages, this liability was not truly contractual because it would not have existed but for the statute.” Id. at 610 (citing Cannon, 22 Wash.2d at 241, 155 P.2d 500).

» “Accordingly, the court held that FLSA actions were not governed by the contract statute of limitations, and instead applied the catch-all statute.” Id.

[1-4b] Luellen v. Aberdeen

» “In Luellen v. Aberdeen, 20 Wash.2d 594, 148 P.2d 849 (1944), the plaintiff sought reinstatement to the city police force.” Lewis, 36 Wn.App. at 612.

» “The court held that, because the plaintiff had acquired a property right to his civil service pension, the city invaded that right by firing him.” Id.

» “The court thus applied the 3-year statute, stating that it
was intended to cover injury to that kind of property that is intangible in its nature, especially when the injury consists of some direct, affirmative act which prevents another from securing, having, or enjoying some valuable right or privilege.”
Id. (citing Luellen, 20 Wash.2d at 604, 148 P.2d 849).

» Accordingly, Division One concluded: “[W]here the defendant directly invades a legally protected interest of the plaintiff, the 3-year statute applies.” Id.

[1-4C] State ex rel. Bond v. State

» “In State ex rel. Bond v. State, 59 Wash.2d 493, 368 P.2d 676 (1962), the plaintiff sought reinstatement to public employment pursuant to a statute granting veterans an employment preference.” Lewis, 36 Wn.App. at 610

» “He alleged that his claim fell within the 3-year statute as being an action upon ‘any other injury to the person or rights of another'”. Id. (citing Bond, 59 Wash.2d at 495, 368 P.2d 676. See RCW 4.16.080(2)) (internal quotation marks omitted) (hyperlink to external website added).

» “The defendant contended that the catch-all statute applied, because the plaintiff’s claim was founded upon a liability created by statute. The court flatly rejected this argument.” Id.

» “In the court’s view, cases such as Cannon held only that actions founded upon purely statutory liabilities do not fall within the 3-year contract statute of limitations–they did not hold that such actions necessarily fall within the catch-all statute.” Id. at 610-11 (citing Bond, 59 Wash.2d at 497-98, 368 P.2d 676) (footnotes omitted).

» The Court declared:

We reiterate that there is no such category as “an action on a liability created by a statute” in our limitation statutes. Such an action does not fall within the “catch-all” statute unless there is no other statute of limitations applicable thereto, i.e., it is “an action for relief not hereinbefore provided for.”

Id. at 611 (citing Bond, 59 Wash.2d at 498, 368 P.2d 676) (footnote omitted).

» “The court went on to hold that an action under the veteran’s preference statute fell within the predecessor of RCW 4.16.080(2) as being an action for any other injury to the person or rights of another not hereinafter enumerated.” Lewis, 36 Wn.App. at 611 (citing Bond, 59 Wash.2d at 500, 368 P.2d 676) (hyperlink to external website added).

[1-4D] Washington v. Northland Marine Co.

» “In Washington v. Northland Marine Co., 681 F.2d 582 (9th Cir.1982), the plaintiffs sued their union under the Labor Management Relations Act (LMRA), alleging that the union had not fulfilled its duty of representation.” Lewis, 36 Wn.App. at 612.

» “Because the LMRA has no statute of limitations, the court was forced to look to the appropriate Washington statute.” Id.

» “Following Luellen, the court rejected the catch-all statute and applied RCW 4.16.080(2), despite the fact that the plaintiffs’ right to union representation was clearly not a property right in the usual sense.” Lewis, 36 Wn.App. at 612 (hyperlink to external website added).

[1-5] LOCKHEED CONTENDS THAT THE 2-YEAR “CATCH-ALL” STATUTE OF LIMITATIONS APPLIES TO WLAD ACTIONS

In this case, Lockheed contends that the 2-year “catch-all” statute of limitations applies to WLAD actions pursuant to RCW 4.16.130; whereas Lewis argues that a 3-year statute of limitations applies under RCW 4.16.080(2). See Lewis, 36 Wn.App. at 609 (hyperlinks to external website added).

[1-5A] LOCKHEED’S ARGUMENT #1 — THE 2-YEAR STATUTE OF LIMITATIONS APPLIES to liabilities created by statute:

“Lockheed contends that the 2-year ‘catch-all’ statute of limitations, RCW 4.16.130, applies to actions brought under … [the Washington Law Against Discrimination].” Lewis, 36 Wn.App. at 609 (hyperlink to external website added). Accordingly, it asserts that “the 2-year catch-all statute of limitations applies to all causes of action that are founded upon liabilities created by statute.” Id. “Because Lewis would not have a claim but for the Washington Law Against Discrimination, his claim, Lockheed contends, falls within RCW 4.16.130.” Lewis, 36 Wn.App. at 609 (hyperlink to external website added). “Lockheed relies on Cannon v. Miller, 22 Wash.2d 227, 155 P.2d 500, 157 A.L.R. 530 (1945) to support this view.” Lewis, 36 Wn.App. at 609.

COURT’S ANALYSIS — LOCKHEED’S ARGUMENT #1

» There is no such category as an action on a liability created by a statute in our limitations statutes.

“Lockheed … relies on Cannon [v. Miller] for the proposition that all actions founded upon liabilities created by statute necessarily fall within the 2-year catch-all statute. We do not agree.” Lewis, 36 Wn.App. at 610. “We reiterate that there is no such category as ‘an action on a liability created by a statute’ in our limitation statutes. Such an action does not fall within the ‘catch-all’ statute unless there is no other statute of limitations applicable thereto, i.e., it is ‘an action for relief not hereinbefore provided for.'” Id. at 611. (citing State ex rel. Bond, 59 Wash.2d at 498, 368 P.2d 676).

[1-5B] LOCKHEED’S ARGUMENT #2 — THE WLAD DOES NOT PROTECT PROPERTY RIGHTS:

Moreover, “Lockheed, … argues that RCW 49.60 does not purport to confer or protect any property rights.” Lewis, 36 Wn.App. at 612-13 (hyperlink to external website added).

COURT’S ANALYSIS — LOCKHEED’S ARGUMENT #2

» This argument is disingenuous: The 3-year statute covers all direct invasions of property that are intangible in nature.

“[T]he issue here is if actions under RCW 49.60 fall within RCW 4.16.080(2). Only if they do not would the catch-all statute apply.” Lewis, 36 Wn.App. at 611 (hyperlinks to external website added). “RCW 4.16.080(2) applies only to certain direct invasions of a plaintiff’s person or property rights.” Lewis, 36 Wn.App. at 611 (internal citations omitted) (hyperlink to external website added). Accordingly, the Court found that Lockheed’s “argument is disingenuous. As [the case of] Luellen [v. Aberdeen] demonstrates, the 3-year statute covers all direct invasions of ‘property that is intangible in nature.'” Lewis, 36 Wn.App. at 613 (emphasis added).

EXAMPLE #1 (Washington v. Northland Marine): The Court offered Washington v. Northland Marine Co. for example: “In Washington v. Northland Marine Co., 681 F.2d 582 (9th Cir.1982), the plaintiffs sued their union under the Labor Management Relations Act (LMRA), alleging that the union had not fulfilled its duty of representation.” Lewis, 36 Wn.App. at 613. The Court determined:

Because the LMRA has no statute of limitations the court was forced to look to the appropriate Washington statute. Following Luellen, the court rejected the catch-all statute and applied RCW 4.16.080(2), despite the fact that the plaintiffs’ right to union representation was clearly not a property right in the usual sense.

Lewis, 36 Wn.App. at 613 (both hyperlink to external website and emphasis added).

EXAMPLE #2 (Luellen v. Aberdeen): The Court also determined that, in Luellen v. Aberdeen:

[T]he plaintiff sought reinstatement to the city police force. The court held that, because the plaintiff had acquired a property right to his civil service pension, the city invaded that right by firing him. The court thus applied the 3-year statute, stating that it was intended to cover injury to that kind of property that is intangible in its nature, especially when the injury consists of some direct, affirmative act which prevents another from securing, having, or enjoying some valuable right or privilege.

Lewis, 36 Wn.App. at 613 (citing Luellen, 20 Wn.2d at 604, 148 P.2d 849) (emphasis added).

[1-6] FURTHER SUPPORT FOR APPLYING THE 3-YEAR STATUTE OF LIMITATIONS IS FOUND IN WLAD:

Lastly, the Court determined: “Further support for applying the 3-year statute 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).

[1-7] COURTS APPLY A 3-YEAR STATUTE OF LIMITATIONS TO WLAD ACTIONS PURSUANT TO RCW 4.16.080(2) — REVERSED & REMANDED:

Here, the Court found that under the Washington Law Against Discrimination (RCW 49.60), courts apply a 3-year statute of limitations to actions pursuant to RCW 4.16.080(2). See Lewis, 36 Wn.App. at 611-613 (hyperlinks to external website added). Moreover, the Court determined that, “even if the arguments favoring application of the 2 and 3-year statutes were otherwise fairly equal, applying the 3-year statute better supports the liberal policies underlying the Law Against Discrimination.” Id. at 613. Accordingly, Division One held: “The order dismissing the action is reversed and the case is remanded for trial.” Id. at 614.

NOTABLES & IMPLICATIONS:

FAILURE OF PUBLIC OFFICIALS TO PERFORM THEIR OFFICIAL DUTIES — northern grain & warehouse co. V. holst

The Court in this case also evaluated Northern Grain & Warehouse Co. v. Holst, to conclude:

Washington courts have consistently followed Northern Grain in holding that the 2-year catch-all statute applies to causes of action arising out of the failure of public officials to perform their official duties.

Lewis, 36 Wn.App. at 612 (citing Constable v. Duke, 144 Wash. 263, 266-67, 257 P. 637 (1927); Gates v. Rosen, 29 Wash.App. 936, 941, 631 P.2d 993 (1981), aff’d sub nom. Hall v. Niemer, 97 Wash.2d 574, 649 P.2d 98 (1982); Peterick v. State, supra, 22 Wash.App. at 169, 589 P.2d 250)).

The Court evaluated Northern Grain as follows:

• “In Northern Grain & Warehouse Co. v. Holst, [ ] the plaintiff was unable to retrieve grain stored at a warehouse upon presentation of a warehouse receipt.” Lewis, 36 Wn.App. at 611-12.

• “He then sued members of the public service commission for negligently issuing a license to the owner of the warehouse without obtaining a bond as required by state law.” Id. at 612.

• “The court reasoned that the 3-year statute of limitations for injuries to the ‘rights of another’ must be construed narrowly or it would incorporate all causes of action, completely nullifying the catch-all statute.” Id.

• “Accordingly, the court held that the plaintiff’s cause of action was not based upon an injury sufficiently direct to fall within the 3-year statute.” Id.

• “Rather, it was ‘indirectly based upon the failure of public officials to perform duties imposed by law.'” Id. (citing Northern Grain, 95 Wash. at 315, 163 P. 775).

• “Washington courts have consistently followed Northern Grain in holding that the 2-year catch-all statute applies to causes of action arising out of the failure of public officials to perform their official duties.” Lewis, 36 Wn.App. at 612 (citing Constable v. Duke, 144 Wash. 263, 266-67, 257 P. 637 (1927); Gates v. Rosen, 29 Wash.App. 936, 941, 631 P.2d 993 (1981), aff’d sub nom. Hall v. Niemer, 97 Wash.2d 574, 649 P.2d 98 (1982); Peterick v. State, supra, 22 Wash.App. at 169, 589 P.2d 250)).

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February 9, 2023

Chen v. State, 86 Wn.App. 183 (Div. 2 1997)

This is a case summary of Chen v. State, 86 Wn.App. 183 (Div. 2 1997), review denied, 133 Wn.2d 1020, 948 P.2d 387 (1997). The subjects addressed herein include the following:

» FRAUD

» MOTIONS FOR RECONSIDERATION

» PROMISSORY ESTOPPEL

» SELF-EVALUATIONS

» THE MCDONNELL DOUGLAS FRAMEWORK — PRETEXT

» WRONGFUL TERMINATION

In this case, “Western State Hospital dismissed Dr. Hsi Chen after a six-month probationary period, citing poor performance. Chen sued, alleging

(1) fraud based on his reliance on the State’s representations about the probationary employment period, and

(2) discrimination.

Id. at 185 (paragraph formatting added). “The trial court granted summary judgment for the State, and Chen appeal[ed]. Because the State did not misrepresent the conditions of probation, and because Chen failed to produce evidence that the State’s reason for dismissing him was false or a mere pretext, we affirm.” Id. at 185-86.

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Chen v. State, 86 Wn.App. 183 (Div. 2 1997). — **Chen v. State, 86 Wn.App. 183 (Div. 2 1997), review denied, 133 Wn.2d 1020, 948 P.2d 387 (1997)**

case summarY – 19 PRIMARY Facts:

[1] Hsi Chen was born in Taiwan in 1925 and received his medical degree there in 1948.

[2] He became board certified in psychiatry in the United States in November 1989.

[3] The following spring, Chen applied for a psychiatrist position at Western State Hospital.

[4] Chen started at Western State in July 1990, serving as a team leader in a very difficult ward.

[5] The treatment team consisted of Chen, a psychologist, a social worker, and the nursing staff.

[6] Chen’s duties included supervising treatment and directing the psychiatric program.

[7] Dr. Dennis, Chen’s supervisor, evaluated Chen’s performance after four months and solicited comments from staff and team members.

[8] Dennis found that Chen had met the minimum requirements in three evaluation areas, and failed to meet minimum requirements in two areas.

[9] Among the various comments, Dennis noted, for example, that some staff had requested transfers.

[10] Chen meanwhile evaluated his own performance, concluding that he had exceeded the normal requirements in four areas, and met the normal requirements in the fifth area.

[11] Chen also explained specific criticisms, for example, noting that one staff member who had requested a transfer “has a reputation of being very difficult to deal with.”

[12] Dr. Dennis evaluated Chen’s performance again after six months, soliciting further comments from the team members.

[13] They expressed concerns that Chen was rigid and inflexible in his treatment style, disregarded their input, and had problems communicating in spoken English.

[14] Dennis found that Chen had met the normal requirements in three evaluation areas, met the minimum requirement in one area, and failed to meet minimum requirements in one area.

[15] Dennis did not recommend Chen for permanent employment. Western State then notified Chen that his probationary period would terminate the following day, after six months’ service.

[16] Chen sued the State, DSHS, and Western State, alleging[, inter alia,] discrimination based on age, race, and national origin under RCW 49.60 and 49.44.090.

[17] Finding that Chen had not established that the State’s reason for terminating him was a pretext or unworthy of belief, the trial court granted summary judgment to the State.

[18] Chen then moved for reconsideration, submitting an affidavit and a declaration signed by several former colleagues at Western State.

[19] The trial court granted the State’s motion to strike the affidavit and the declaration and denied Chen’s motion for reconsideration. Chen appeals.

Chen v. State, 86 Wn.App. 183 (Div. 2 1997), review denied, 133 Wn.2d 1020, 948 P.2d 387 (1997) (internal citations omitted) (paragraph formatting and hyperlinks added).

ISSUE #1: Did the Court properly dismiss Chen’s discrimination claims (i.e., wrongful termination based on age, race, and national origin?

[1-1] WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): “RCW Chapter 49 prohibits employers from discriminating against persons based on age, race, creed, color, or national origin.” Chen, 86 Wn.App. at 189 (citing RCW 49.44.090; 49.60.180).

EDITORS NOTE: as of the date of this article, RCW 49.60.180 includes the following protected classes: age*, sex*, marital status*, sexual orientation*, race*, creed*, color, national origin*, citizenship or immigration status, 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.

(*The link will take the reader to our external website blog: Law Office of Gregory A. Williams.)

[1-2] THE THREE-STEP MCDONNELL DOUGLAS FRAMEWORK:

[1-2a] STEP 1 — THE PLAINTIFF’S PRIMA FACIE CASE: “To establish a prima facie case of termination for age, race, or national origin discrimination, an employee must demonstrate that he or she[:]

(1) belongs in a protected class;

(2) was discharged;

(3) was doing satisfactory work; and

(4) was replaced by someone not in the protected class.

EDITORS NOTE: in Mikkelsen v. Public Utility District No. 1 of Kittitas County*, 189 Wn.2d 516 (Wash. 2017), the Washington State Supreme Court held that “the McDonnell Douglas framework* does not require a plaintiff to prove that she was replaced by a person outside her protected group to establish a prima facie case of discrimination.” Id. at 532 (emphasis and hyperlink added).

(*The link will take the reader to our external website blogs: Court Slips and Williams Law Group, respectively.)

Id. (citing Grimwood v. University of Puget Sound, Inc., 110 Wash.2d 355, 362-64, 753 P.2d 517 (1988); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)) (emphasis added).

» Establishing Prima Facie Case Prevents Dismissal at End of Plaintiff’s Case: “Establishing these elements prevent dismissal at the end of the plaintiff’s case, notwithstanding that the evidence does not yet show why the discharge occurred.” Id. (citing Carle v. McChord Credit Union, 65 Wash.App. 93, 99 n. 6, 827 P.2d 1070 (1992)).

[1-2b] STEP 2 — THE EMPLOYER’S LEGITIMATE NONDISCRIMINATORY REASON:

» After Prima Facie Case Is Established, Employer Must Articulate Legitimate, Nondiscriminatory Reason for Termination: “Once a plaintiff has established this prima facie case, the employer must articulate a legitimate, nondiscriminatory reason for the termination.” Id. at 189-90 (citing Grimwood, 110 Wash.2d at 363-64, 753 P.2d 517).

» Employer’s Burden Is Production Not Persuasion: “The employer’s burden is not one of persuasion, but rather one of production.” Id. at 190 (internal citation omitted).

» If Employer Fails Step 2, No Genuine Issue of Material Fact : “If the employer fails to advance a legitimate reason for its action, there is no genuine issue of material fact.” Id. (citing Carle, 65 Wash.App. at 100, 827 P.2d 1070).

[1-2c] STEP 3 — ESTABLISHING PRETEXT:

» If Employer Satisfies Step 2, Then Employee Must Establish Employer’s Reason(s) Are Pretext for Discriminatory Purpose: “If an employer meets this burden[, (i.e., establishing a legitimate nondiscriminatory reason for the termination)], the plaintiff must then show that the employer’s articulated reasons are unworthy of belief or are a mere pretext for what is, in fact, a discriminatory purpose.” Id. (citing Grimwood, 110 Wash.2d at 364, 753 P.2d 517).

» Ways To Show Pretext: “An employee can demonstrate that the employer’s proffered reasons are unworthy of belief with evidence that:

(1) the employer’s reasons have no basis in fact; or

(2) even if the reasons are based on fact, the employer was not motivated by the reasons; or

(3) the reasons are insufficient to motivate the adverse employment decision.

Id. (citing Kuyper v. State, 79 Wash.App. 732, 738-39, 904 P.2d 793 (1995), review denied, 129 Wash.2d 1011, 917 P.2d 130 (1996).

» If Plaintiff Shows Pretext, Then Case Must Go to Jury; If Not, Then Employer Entitled to Dismissal: “If a plaintiff produces evidence at this third 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 Carle, 65 Wash.App. at 102, 827 P.2d 1070).

[1-3] MCDONNELL-DOUGLAS FRAMEWORK: OVERCOMING SUMMARY JUDGMENT:

» Need More Than Opinions or Conclusory Statements: “[T]o overcome an employer’s summary judgment motion, the employee must do more than express an opinion or make conclusory statements.” Id. (citing Hiatt v. Walker Chevrolet Co., 120 Wash.2d 57, 66, 837 P.2d 618 (1992)).

» Must Establish Specific & Material Facts: “The employee has the burden of establishing specific and material facts to support each element of his or her prima facie case.” Id. (citing Hiatt, 120 Wash.2d at 66, 837 P.2d 618 (emphasis present)).

[1-4] MCDONNELL-DOUGLAS FRAMEWORK: FIVE CONSIDERATIONS:

1. Direct or “Smoking Gun” Evidence Not Required: “To meet this burden, an employee is not required to produce direct or “smoking gun” evidence. Id. at 190 (citing Sellsted v. Washington Mut. Sav. Bank, 69 Wash.App. 852, 860, 851 P.2d 716 (1993)).

2. Circumstantial, Indirect, and Inferential Evidence is Sufficient: Circumstantial, indirect, and inferential evidence is sufficient to discharge the plaintiff’s burden. Id. (citing Sellsted, 69 Wash.App. at 860, 851 P.2d 716).

3. Subjective Judgments by Employers Are Not Per Se Illegal: “Subjective judgments by employers are not per se illegal, nor do they always lack legitimacy.” Id. (citing MACK A. PLAYER, EMPLOYMENT DISCRIMINATION LAW 336 (1988)).

4. Subjective Performance Evaluations Are Legitimate When Job Requires Professional Judgment: “Subjective evaluations of performance are legitimate when the job requires the employee to exercise professional judgment.” Id. at 190-91 (citing PLAYER, supra, at 336).

5. Need More Than Assertion of Good Performance to Counter Assertion of Poor Performance: “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 Parsons v. St. Joseph’s Hosp., 70 Wash.App. 804, 811, 856 P.2d 702 (1993)).

[1-5] MCDONNELL DOUGLAS FRAMEWORK — CHEN ESTABLISHED A PRIMA FACIE CASE:

» The Prima Facie Case (Elements 1 & 2): Parties Agree Chen Is Older Asian Male From Taiwan and the Hospital Dismissed Him: “Here, the parties agree that Chen is an older Asian male from Taiwan and that the hospital dismissed him at the end of the probationary period.” Chen, 86 Wn.App. at 191.

» The Prima Facie Case (Elements 3 & 4): Chen Uses Self-Evaluations to Argue He Was Doing Satisfactory Work and the State’s Basis For Termination Was Pretext: “Chen maintains that he was doing satisfactory work and that the State’s reason for dismissal, poor performance, was a pretext. To establish an inference of discrimination, Chen points to his own self-evaluations and his explanations of the State’s examples of poor work performance.” Id.

[1-6] COURT’S ANALYSIS — CHEN DID NOT ESTABLISH PRETEXT:

» Self-Evaluations Insufficient to Raise Genuine Issues of Material Fact: “Chen’s self-evaluations, however, are insufficient to raise genuine issues of material fact.” See Parsons, 70 Wash.App. at 811, 856 P.2d 702 (employee’s good performance assertion did not give rise to a reasonable inference of discrimination to contradict legitimate, nondiscriminatory reason for the termination based on poor performance).

» Chen Did Not Challenge Staff Complaints Used to Evaluate His Performance: Chen’s “explanations for the cited examples of poor performance do not create an inference of discrimination. Chen does not challenge the facts of the staff complaints used by the State to evaluate his performance. Rather, he seeks either to minimize their importance or offers explanations that shift responsibility from him, e.g., one of the transferring staff had a reputation for being difficult.

» State Entitled to Expect Chen (As Team Leader) to Deal With Difficult Team Members: “But the State was entitled to expect Chen, as the team leader, to deal with ‘difficult’ team members. Chen’s duties, really nothing more than job description, were for the State to formulate, not Chen.” Id.

[1-7] PLAINTIFF CHEN FAILED TO ESTABLISH PRETEXT — SUMMARY JUDGMENT AFFIRMED: “[W]e hold that Chen failed to … present evidence that the State’s reason for terminating him was either false or a pretext. We affirm the summary judgment for the State.” Chen, 86 Wn.App. at 194 (emphasis added).

ISSUE #2: Did the Court properly dismiss Chen’s fraud claim?

[2-1] FRAUD — THE PRIMA FACIE CASE: “To establish fraud, the plaintiff must demonstrate:

(1) representation of an existing fact;

(2) materiality;

(3) falsity;

(4) speaker’s knowledge of its falsity;

(5) speaker’s intention that it shall be acted upon by the plaintiff;

(6) plaintiff’s ignorance of falsity;

(7) reliance;

(8) right to rely; and

(9) damages.

Chen, 86 Wn.App. at 188 (citing Hoffer v. State, 110 Wash.2d 415, 425, 755 P.2d 781 (1988), aff’d. on rehearing, 113 Wash.2d 148, 776 P.2d 963 (1989)) (paragraph formatting added).

[2-2] REQUIRES CLEAR, COGENT, AND CONVICING EVIDENCE: “Each element of fraud must be proven by clear, cogent, and convincing evidence.” Id. (citing Douglas Northwest, Inc. v. Bill O’Brien & Sons Constr., Inc., 64 Wash.App. 661, 678, 828 P.2d 565 (1992)).

[2-3] CHEN’S ARGUMENT — SATISFACTORY PERFORMANCE IN THE PROBATIONARY PERIOD MEANS ABSENCE OF GROSS MISCONDUCT: In this case, “Chen first argues that the State is estopped from denying him permanent employment because it interpreted ‘satisfactory performance’ in the probationary period to mean an absence of gross misconduct.” Chen, 86 Wn.App. at 188. “Chen claims that he had a right to rely on this interpretation. Id.

[2-4] COURT’S ANALYSIS — NO FALSE STATEMENT:

In the instant case, the Court made the following determinations concerning Chen’s argument:

» Chen Is Incorrect: In this case, the Court determined that “Chen’s argument, that Hamilton represented that gross misconduct was the only grounds for failing probation, is not correct.” Id.

» Hamilton Did Not Represent That “Gross Misconduct” Was Only Grounds for Failing Probation: “When asked by Chen about the probationary period, Hamilton responded that the probationary period was not difficult, and that only one psychiatrist in the past 10 years had failed the probationary period. That psychiatrist, according to Hamilton, had committed gross misconduct.” Id.

» Hamilton Did Not Make a False Statement: “Hamilton did not make a false statement. The statement was simply an explanation of the reason one psychiatrist had failed to pass probation. It was not a representation that one can fail probation only by committing gross misconduct.” Id. at 188-89.

[2-5] THE TRIAL COURT PROPERLY DISMISSED THE FRAUD CLAIM: In this case, the Court held that “the trial court properly dismissed the fraud claim.” Chen, 86 Wn.App. at 188-89 (footnote omitted).

ISSUE #3: Did the Court abuse its discretion in striking Chen’s affidavit and declaration in support of his motion for reconsideration?

[3-1] MOTIONS FOR RECONSIDERATION — STRIKING AFFIDAVITS AND DECLARATIONS:

» Summary Judgment Context — No Prejudice if Court Considers Additional Facts on Reconsideration: “In the context of summary judgment, unlike in a trial, there is no prejudice if the court considers additional facts on reconsideration.” Chen, 86 Wn.App. at 192 (citing Applied Indus. Materials Corp. v. Melton, 74 Wash.App. 73, 77, 872 P.2d 87 (1994)).

» CR 59 Does Not Prohibit Submissions of New/Additional Materials on Reconsideration: “Furthermore, nothing in CR 59 prohibits the submission of new or additional materials on reconsideration.” Id. (citing Sellsted, 69 Wash.App. at 865 n. 19, 851 P.2d 716).

» Motions for Reconsideration & Taking of Additional Evidence Are Within Discretion of Trial Court: “Motions for reconsideration and the taking of additional evidence, therefore, are within the discretion of the trial court.” Id. (citing Trohimovich v. Department of Labor & Indus., 73 Wash.App. 314, 318, 869 P.2d 95 (1994) (trial court did not abuse discretion by failing to grant reconsideration motion); Ghaffari v. Department of Licensing, 62 Wash.App. 870, 816 P.2d 66 (1991) (consideration of additional evidence at motion for reconsideration of bench trial within discretion of trial court)).

In this case, “Chen … argues the trial court erred in striking the affidavit and declaration submitted in support of his motion for reconsideration.” Chen, 86 Wn.App. at 191-92.

[3-2] STRIKING AFFIDAVITS:

“Here, the trial court did not abuse its discretion in striking the affidavit and declaration.” Id.

COURTS ANALYSIS:

Affidavit Contained No New Information About Chen: “The affidavit contained no new information about Chen, only a repetition of already presented information, and personnel information about Dr. Dennis.” Id.

∴ No Issues of Material Fact Concerning Dismissal: “This information does not create any issues of material fact concerning Chen’s dismissal.” Id.

[3-3] STRIKING DECLARATIONS:

“Chen also submitted a declaration, signed by some former medical colleagues at Western State [(hereinafter, “delcarants”].” Id.

COURTS ANALYSIS:

Declaration Said Chen Had Good Communication Skills and Relationships: “The declaration stated that Chen had good communication skills and had good relationships with his colleagues and coworkers.” Id.

However, No Delcarant Either Supervised and Evaluated Chen or Served as a Member of His Team: “But none of the colleagues who signed the declaration was either charged with supervising and evaluating Chen or served as a member of his team. Id. (citing Grimwood, 110 Wash.2d at 364, 753 P.2d 517 (none of the customers were charged with supervising and evaluating employee’s performance)).

∴ Declaration Was Insufficient to Establish Falsity or Pretext: “Thus, this declaration was also insufficient to establish that the State’s reasons for dismissing Chen were either false or mere pretexts.” Id.

[3-5] TRIAL COURT DID NOT ABUSE ITS DISCRETION IN STRIKING AFFIDAVIT AND DECLARATION — AFFIRMED: “Accordingly, the trial court did not abuse its [sic] [discretion] in striking the affidavit and declaration.” Id. at 192.

NOTABLES & IMPLICATIONS:

PLEADINGS

(a) “Under the liberal rules of procedure, pleadings are primarily intended to give notice to the court and the opponent of the general nature of the claim asserted.” Chen, 86 Wn.App. at 193 (citing Lewis v. Bell, 45 Wash.App. 192, 197, 724 P.2d 425 (1986)).

(b) “Although inexpert pleading is allowed, insufficient pleading is not.” Id. (citing Lewis, 45 Wash.App. at 197, 724 P.2d 425).

(c) “A pleading is insufficient when it does not give the opposing party fair notice of what the claim is and the ground upon which it rests.” Id. at 193-94 (quoting Lewis, 45 Wash.App. at 197, 724 P.2d 425; Molloy v. City of Bellevue, 71 Wash.App. 382, 389, 859 P.2d 613 (1993) (complaint must apprise defendant of the nature of plaintiff’s claims and legal grounds upon which claim rests)) (internal quotation marks omitted).

(d) APPLICATION (Chen v. State) — A single statement in pleadings is insufficient: In this case, “Chen … maintains that he raised a hostile work environment claim.” Id. at 193. “In the factual section of his complaint, Chen states ‘[t]hat upon commencing work at Western State Hospital, Plaintiff was subject to discrimination in the terms and conditions of his employment because of his race, age, and national origin.'” Id. (alteration in original). “Here, trial counsel did not raise a hostile work environment claim in the briefing, nor did the State address the issue in its summary judgment brief. Furthermore, the issue was not mentioned during oral argument on the motion.” Id. at 194.

∴ Court’s Analysis: “This single statement in the pleadings is insufficient to give the court and the opposing party notice of the claim.” Id. (citing Lewis, 45 Wash.App. at 197, 724 P.2d 425). “Accordingly, a claim for a hostile work environment was not Before the trial court.” Id.

PROMISSORY ESTOPPEL

(e) “In reviewing a summary judgment order, the appellate court will consider only evidence and issues called to the attention of the trial court.” Id. at 194 n.1 (citing RAP 9.12). “Under the doctrine of promissory estoppel, the plaintiff must establish:

(1) a promise which

(2) the promisor should reasonably expect to cause the promisee to change his position and

(3) which does cause the promisee to change his position

(4) justifiably relying upon the promise, in such a manner that

(5) injustice can be avoided only by enforcement of the promise.

Id. (citing Havens v. C & D Plastics, Inc., 124 Wash.2d 158, 172, 876 P.2d 435 (1994), quoting Klinke v. Famous Recipe Fried Chicken, Inc., 94 Wash.2d 255, 259 n. 2, 616 P.2d 644 (1980)).

(f) “Promissory estoppel requires the existence of a promise.” Id. (citing Havens, 124 Wash.2d at 172, 876 P.2d 435).

(g) “A promise is defined as ‘a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.'” Id. (quoting Havens, 124 Wash.2d at 172, 876 P.2d 435 (quoting Restatement (Second) of Contracts, § 2(1))).

(h) APPLICATION (Chen v. State) — No promise in this case: In this case, “Chen also argues that the court should consider a promissory estoppel claim because the doctrine relies on the same facts in evidence as the fraud claim.” Id. However, “[e]ven if the court could consider the claim, it is without merit.” Id.

∴ Court’s Analysis: “Here, Hamilton did not make a promise to Chen regarding the probationary period; there was no manifestation that an employee could fail to achieve permanent status only because of gross misconduct. Hamilton only stated that gross misconduct was the reason one particular psychiatrist had failed to complete the probationary period.” Id.

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May 26, 2022November 19, 2022

Davis v. West One Automotive Group, 140 Wn.App. 449 (Div. 3 2007)

This is a case summary of Davis v. West One Automotive Group, 140 Wn.App. 449 (Div. 3 2007), petition denied, 163 Wn.2d 1039 (Wash. 2008). Subjects include:

» RACE AS A PROTECTED CLASS

» HOSTILE WORK ENVIRONMENT

» DISPARATE TREATMENT

» RETALIATORY DISCHARGE

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**Davis v. West One Automotive Group, 140 Wn.App. 449 (Div. 3 2007), petition denied, 163 Wn.2d 1039 (Wash. 2008)**

case summarY – 12 PRIMARY Facts:

[1] Mark 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.

[a] On one occasion, West One manager and Mr. Davis’s supervisor, Dan Willard, 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, Mr. Willard responded, “Because they shot and killed his black a[##].” Mr. Davis told Mr. Willard the comment was inappropriate and not to make such a comment again.

[b] Another time, Mr. Willard stated, “Blacks on the eastside, Mexicans on the west; hell I don’t know.” Mr. Davis was offended, and told Mr. Willard so.

[c] A third incident involved Mr. Willard 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 Mr. Willard he was offended.

[3] Fellow sales employee, Joe Klein, also made comments that Mr. Davis found racially offensive.

[a] On an occasion when Mr. Davis had customers in the finance office and his telephone rang, Mr. Klein stopped him from answering stating, “Hey, Buckwheat, you can’t get that call.” Mr. Davis was offended and asked Mr. Klein to refer to him by name.

[b] One day after Mr. Davis had sold a car to a woman who worked with his wife, and whose husband had previously bought a car from Mr. Klein, Mr. Klein grew angry and stated, “if you’re going to be here at West One Automotive Group, you need to do things our way.”

[c] Another time, some customers arrived to see Mr. Davis and Mr. Klein told him he had “black people” waiting for him. Mr. Davis was offended, noting he did not refer to Mr. Klein’s customers as ” white people.”

[d] Mr. Davis complained to West One Human Resources about Mr. Klein’s “Buckwheat” comment. No disciplinary action was taken.

[4] At a subsequent staff meeting, Mr. Willard discussed generally with the entire staff that, “no use of any type of insensitive name, nickname or not, would be tolerated.”

[5] Because no action had been taken against Mr. Klein and because he regarded Mr. Willard as “the worst offender of racial discrimination,” Mr. Davis did not complain again.

[6] In June 2005, Mr. Davis was salesman of the month. Per customary practice, this honor entitled him to drive any vehicle on the lot for the month, enjoy free gasoline and have his picture in the newspaper.

[7] Due to an error, Mr. Davis’s picture was not put in the paper; instead another salesman was pictured and identified as salesman of the month. When Mr. Davis discovered the error and brought it to West One’s attention, West One refused to place a corrected photo in the newspaper.

[8] As salesman of the month, Mr. Davis chose to drive a Bavarian Motor Works (BMW) vehicle, and began using it on a Saturday.

[a] On Sunday, Mr. Willard told Mr. Davis that the BMW needed to be returned for service.

[b] Mr. Davis believed this was not true and the car had already been serviced, so he drove the car home.

[c] Mr. Davis called in ill on Monday and asked to speak to Mr. Willard. When Mr. Willard did not respond to his page, he asked the receptionist to tell Mr. Willard he was sick.

[d] Approximately two days later, Mr. Davis returned to West One, driving the BMW.

[e] When he returned, he was terminated.

[9] Mr. Davis brought this action under WLAD, chapter 49.60 RCW, alleging hostile work environment, disparate treatment and retaliatory discharge. West One moved for summary judgment dismissal.

[10] In support of its motion, West One submitted two declarations of counsel, attaching various documents, extracts of Mark Davis’s deposition and declarations of Dan Willard, Joe Klein and other West One employees.

[a] West One employees stated that Mr. Davis was habitually late to work, missed shifts or left during shifts, and was reluctant to assist in tasks expected of the sales staff.

[b] With respect to the particular discriminatory statements identified by Mr. Davis, neither Mr. Willard nor Mr. Klein denied making the statements at issue.

[c] Mr. Klein explained that he did not consider “Buckwheat” to be a racially charged moniker and did not intend to offend Mr. Davis.

[c] Mr. Willard offered that his reasons for terminating Mr. Davis were his ongoing unreliability and, most importantly, his failure to return the BMW for several days despite having been asked to do so.

[11] None of the West One employee declarations addressed the issue of Mr. Davis not being recognized in the newspaper as salesman of the month. Mr. Davis stated at his deposition that he believed the error was initially a “screw-up.” Once he discovered the error and brought it to West One’s attention, he was recognized as salesman of the month, but West One refused to place his picture in the paper.

[12] The trial court granted West One’s motion for summary judgment dismissing all claims. This appeal followed.

Davis v. West One Automotive Group, 140 Wn.App. 449 (Div. 3 2007), petition denied, 163 Wn.2d 1039 (Wash. 2008) (internal citations omitted) (paragraph formatting and hyperlinks added).

ISSUE #1: Was the trial court’s summary-judgment dismissal of Plaintiff’s hostile-work-environment claim proper?

[1-1] FACTS ADDUCED ON SUMMARY JUDGMENT: “The facts as adduced on summary judgment are set forth here in a light most favorable to the non-moving party.” Davis, 163 Wn.2d at 452-53 (citing Marquis v. City of Spokane, 130 Wash.2d 97, 105, 922 P.2d 43 (1996)).

[1-2] SUMMARY JUDGMENT: The Court “review[s] orders of summary judgment dismissal de novo, engaging in the same inquiry as the trial court.” Id. at 456 (citing Korslund v. DynCorp Tri-Cities Servs., Inc., 156 Wash.2d 168, 177, 125 P.3d 119 (2005); RAP 9.12).

[1-2a] APPROPRIATE WHEN NO GENUINE ISSUES OF MATERIAL FACT AND MOVING PARTY ENTITLED TO JUDGMENT AS A MATTER OF LAW: “Summary judgment is appropriate only if the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'” Id. (citing CR 56(c)).

[1-2b] COURT MUST CONSIDER FACTS AND ALL REASONABLE INERENCES FROM THOSE FACTS IN LIGHT MOST FAVORABLE TO NONMOVING PARTY: “The court must consider the facts submitted and all reasonable inferences from those facts in the light most favorable to the nonmoving party.” Id. (citing Marquis, 130 Wash.2d at 105, 922 P.2d 43; Clements v. Travelers Indem. Co., 121 Wash.2d 243, 249, 850 P.2d 1298 (1993)).

[1-2c] PURPOSE IS TO AVOID A USELESS TRIAL: “The purpose of summary judgment, after all, is to avoid a ‘useless trial.'” Id. (citing Lamon v. McDonnell Douglas Corp., 91 Wash.2d 345, 349, 588 P.2d 1346 (1979)) (internal citations and quotation marks omitted).

[1-2d] TO OVERCOME SUMMARY JUDGMENT, DISCRIMINATION-CASE PLAINTIFF’S MUST ESTABLISH SPECIFIC AND MATERIAL FACTS TO SUPPORT EACH ELEMENT OF A PRIMA FACIE CASE: “In order to overcome a motion for summary judgment, a plaintiff in a discrimination case must establish specific and material facts to support each element of a prima facie case.” Id. (citing Marquis, 130 Wash.2d at 105, 922 P.2d 43).

[1-2e] QUESTIONS OF FACT DETERMINED AS A MATTER OF LAW ONLY WHERE REASONABLE MINDS CAN REACH BUT ONE CONCLUSION: “Questions of fact can be determined as a matter of law only where reasonable minds can reach but one conclusion.” Id. (citing Sherman v. State, 128 Wash.2d 164, 184, 905 P.2d 355 (1995)).

[1-2f] IN DISCRIMINATION CASES, SUMMARY JUDGMENT IN FAVOR OF EMPLOYER IS OFTEN INAPPROPRIATE: “Summary judgment in favor of the employer in a discrimination case is often inappropriate because the evidence will generally contain reasonable but competing inferences of both discrimination and nondiscrimination that must be resolved by a jury.” Id. (citing Kuyper v. Dep’t of Wildlife, 79 Wash.App. 732, 739, 904 P.2d 793 (1995), review denied, 129 Wash.2d 1011, 917 P.2d 130 (1996)).

[1-3] HOSTILE WORK ENVIRONMENT (BASED ON RACE): “RCW 49.60.180(3) prohibits an employer from discriminating against an employee ‘in other terms or conditions of employment because of … race.'” Davis, 163 Wn.2d at 456-57 (hyperlinks added).

[1-3a] THE PRIMA FACIE CASE: “To establish a prima facie case he must show that he suffered harassment that was[:]

(1) unwelcome,

(2) because he was a member of a protected class,

(3) affected the terms and conditions of his employment, and

(4) imputable to the employer.

Id. at 457 (citing Antonius v. King County, 153 Wash.2d 256, 261, 103 P.3d 729 (2004) (citing Glasgow v. Georgia-Pac. Corp., 103 Wash.2d 401, 406-07, 693 P.2d 708 (1985); see also Clarke v. Office of Attorney Gen., 133 Wash.App. 767, 785, 138 P.3d 144 (2006), review denied, 160 Wash.2d 1006, 158 P.3d 614 (2007)) (paragraph formatting added).

[1-3b] FIRST ELEMENT (UNWELCOME): “Conduct is unwelcome if the plaintiff did not solicit or incite it.” Id. (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708).

[1-3c] THIRD ELEMENT (TERMS AND CONDITIONS OF EMPLOYMENT): “The third element requires that the harassment be sufficiently pervasive as to alter the conditions of employment and create an abusive working environment.” Id. (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708). “Whether the comments here affected the conditions of Mr. Davis’s employment is a question of fact.” Id.

Totality of the Circumstances Test: “To determine whether West One’s conduct was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment, we look at the totality of the circumstances.” Id. (citing Adams v. Able Bldg. Supply, Inc., 114 Wash.App. 291, 296, 57 P.3d 280 (2002)).

[1-3e] FOURTH ELEMENT (IMPUTABLE TO EMPLOYER): “To establish the fourth element Mr. Davis must show West One knew or should have known of the comments and failed to take reasonable corrective action to end the harassment.” Id. at 458 (citing Francom v. Costco Wholesale Corp., 98 Wash.App. 845, 853-54, 991 P.2d 1182, review denied, 141 Wash.2d 1017, 10 P.3d 1071 (2000); Campbell v. State, 129 Wash.App. 10, 20, 118 P.3d 888 (2005), review denied, 157 Wash.2d 1002, 136 P.3d 758 (2006)).

[1-4] FIRST AND SECOND ELEMENTS (UNWELCOME and MEMBER OF PROTECTED CLASS, RESPECTIVELY): In this case, the Court initially determined as follows: “The record on summary judgment provides ample evidence to sustain the first and second elements.” Davis, 163 Wn.2d at 457. It based its finding on the following:

» “Mr. Davis testified at deposition and by affidavit that he was subjected to racially derogatory comments, which he did not welcome and which he found offensive.” Id. West One argued “that certain comments … were not racially motivated.” See id.

∴ Court’s Analysis: “While West One argues that certain comments, however offensive to Mr. Davis, were not racially motivated, this cannot be determined as a matter of law.” Id.

“Reasonable minds could find that Mr. Willard’s statements regarding Dr. Martin Luther King, Jr. were racially charged, and not merely ‘odd’ as West One suggests.” Id.

» “A jury could also find that calling an African American man a ‘bitc[#]’ has racial overtones, as understood by Mr. Davis.” Id. Thus, the Court “reject[ed] West One’s invitation to take ‘judicial notice’ that such a term has no racial connotation, but is invariably a gender-based term.” Id. (internal citation omitted).

[1-5] THIRD ELEMENT (TERMS AND CONDITIONS OF EMPLOYMENT): In this case, the Court initially determined as follows: “Whether the comments here affected the conditions of Mr. Davis’s employment is a question of fact.” Id. Thereafter, the Court found facts showing that the harassment was sufficiently pervasive as to alter the conditions of employment and create an abusive working environment, as follows:

» “Mr. Davis asserts he was humiliated by these comments. He claims emotional distress.” Id.

» “The record shows Mr. Davis was often late and absent from work.” Id.

» “There was friction between him and other employees.” Id.

» “When he called in ill a few days before his termination, Mr. Davis testified that he was ‘[p]robably mentally sick, drained.'” Id. at 457-58 (alteration in original).

∴ Court’s Analysis: Based upon the foregoing, the Court concluded as follows: “An inference could be drawn that this was the result of the hostile work environment.” Id. at 458.

[1-5a] TOTALITY OF THE CIRCUMSTANCES

∴ Court’s Analysis: Next, the Court applied the Totality-of-the-Circumstances Test and concluded as follows: “Looking at all the evidence in the light most favorable to Mr. Davis, as required, we conclude he had raised a question of fact with regard to the third element of this claim.” Id.

[1-6] FOURTH ELEMENT (IMPUTABLE TO EMPLOYER): In this case, the Court both identified facts showing that West One knew or should have known of the subject comments and it considered facts regarding whether West One took reasonably corrective action to end the harassment, as follows:

» “Mr. Davis reported the ‘Buckwheat’ comment by Mr. Klein.” Id.

∴ Court’s Analysis: Mr. Davis “was not required to report the comments by Mr. Willard, as Mr. Willard was his supervisor.” Id.

» “The comments occurred openly in the work place.” Id.

» “West One did respond to the one comment Mr. Davis reported by telling all staff during a general staff meeting that use of insensitive names would not be tolerated.”

∴ Court’s Analysis: “Whether this was sufficient to end the harassment is a question of fact.” Id. (internal citations omitted).

[1-7] NUMEROUS FACTUAL ISSUES SURROUND THE HOSTILE WORK ENVIRONMENT CLAIM — SUMMARY JUDGMENT DISMISSAL REVERSED: In this case, the Court held as follows: “Given the numerous factual issues surrounding Mr. Davis’s hostile work environment claim, we reverse the superior court’s order granting summary judgment dismissal.” Id. at 458.
.

ISSUE #2: Was the trial court’s summary-judgment dismissal of Plaintiff’s disparate treatment claim proper?

[2-1] DISPARATE TREATMENT — THE PRIMA FACIE CASE: “To establish a prima facie case of racial discrimination based on disparate treatment, an employee must show that[:]

(1) the employee belongs to a protected class;

(2) the employer treated the employee less favorably in the terms or conditions of employment

(3) than a similarly situated, nonprotected employee,

(4) who does substantially the same work.

Davis, 163 Wn.2d at 459 (citing Washington v. Boeing Co., 105 Wash.App. 1, 13, 19 P.3d 1041 (2000)) (internal citation omitted) (paragraph formatting added).

“Mr. Davis … claims the court erred in dismissing his claim of disparate treatment.” Id. at 458.

[2-2] MATERIAL ALLEGATIONS OF DISPARATE TREATMENT: THERE ARE DISPUTED ISSUES OF FACT FOR THE JURY: In this case, “Mr. Davis alleges three specific instances of disparate treatment.” Id. at 459.

SPECIFIC INSTANCE #1 — THE PICTURE:

» “First … [Mr. Davis] claims his picture was not put in the paper when he was salesman of the month, as was custom.” Id.

» “West One claims this was a mistake.” Id.

» “Mr. Davis testified that when he brought the mistake to West One’s attention, it refused to correct the error by placing his picture in the paper.” Id.

∴ Court’s Analysis: “Whether West One’s actions were a mere mistake or support a claim of disparate treatment is a disputed question of fact.” Id.

SPECIFIC INSTANCE #2 — THE CAR:

» “Mr. Davis next alleges he was treated less favorably than other similarly situated employees because he was not permitted to drive any car he wanted as salesman of the month, though Mr. Klein was always permitted to do so.” Id.

» “When Mr. Davis was salesman of the month, he elected to drive a BMW. When he took the BMW, he was told to return it for service.” Id.

∴ Court’s Analysis: “There is a factual dispute about whether service was necessary. This dispute presents a question of fact for a jury.”

SPECIFIC INSTANCE #3 — THE HARSHER DISCIPLINE:

» “Mr. Davis claims he was held to a higher standard than other employees; he was disciplined more harshly for missing work and being late than were his co-workers.” Id.

» “West One disputes this claim.” Id.

∴ Court’s Analysis: “There is conflicting evidence as to the tardiness and truancy of Mr. Davis and other employees, and as to West One’s tolerance, or not, of this behavior.”

[2-5] DISPARATE TREATMENT: SUMMARY JUDGMENT DISMISSAL WAS INAPPRORIATE — REVERSED: “On this record summary judgment was not appropriate. We reverse the superior court’s order granting summary judgment dismissal of Mr. Davis’s disparate treatment claim.” Id. at 459.

ISSUE #3: Was the trial court’s summary-judgment dismissal of Plaintiff’s retaliatory-discharge claim proper?

[3-1] RETALIATORY DISCHARGE (GENERALLY): “It is an unfair practice for any employer … to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter.” Davis, 163 Wn.2d at 460 (citing Kahn v. Salerno, 90 Wash.App. 110, 128, 951 P.2d 321 (quoting RCW 49.60.210(1)), review denied, 136 Wash.2d 1016, 966 P.2d 1277 (1998)). “An employer need only be motivated in part by retaliatory influences when discharging an employee engaged in protected activity to violate the statute.” Id. (internal citation omitted).

[3-1a] THE PRIMA FACIE CASE: “In order to establish a prima facie case of retaliatory discharge, Mr. Davis 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.

Id. (citing Campbell v. State, 129 Wash.App. 10, 22-23, 118 P.3d 888 (2005), review denied, 157 Wash.2d 1002, 136 P.3d 758 (2006)).

[3-2] BURDEN-SHIFTING FRAMEWORK (GENERALLY): “Because Mr. Davis established a prima facie case of retaliation, the burden shifted to West One to present admissible evidence of its legitimate reason for the discharge.” Id. at 460 (citing Renz v. Spokane Eye Clinic, P.S., 114 Wash.App. 611, 618, 60 P.3d 106 (2002)).

“Mr. Davis argues the court erred in dismissing his retaliation claim.” Davis, 163 Wn.2d at 460.

[3-3] RETALIATORY DISCHARGE: DAVIS ESTABLISHES A PRIMA FACIE CASE: “Mr. Davis claims he was fired for reporting the hostile work environment.”

∴ Court’s Analysis (Elements #1, #2): In this case, the Court found that “[t]his is a protected activity covered by statute and his termination qualifies as an adverse employment action.” Id. at 460 (citing Campbell v. State, 129 Wash.App. 10, 22, 118 P.3d 888 (2005), review denied, 157 Wash.2d 1002, 136 P.3d 758 (2006)).

∴ Court’s Analysis (Element #3): With regard to element #3 (retaliation was a substantial motive behind the adverse employment action), the Court found as follows: “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. at 460.

[3-4] BURDEN-SHIFTING FRAMEWORK (GENERALLY): EMPLOYER PRESENTED EVIDENCE OF LEGITIMATE BASIS FOR DISCHARGE: DAVIS SHOWED PRETEXT: In this case, the Court determined the following facts:

» “West One presented testimony that it terminated Mr. Davis because he refused to return the BMW as requested.” Id.

» “Mr. Davis admitted he knew West One had asked he return the vehicle, but that he kept the car for several days and believed West One’s explanation that the car needed service was false.” Id.

» He was terminated immediately upon returning to work with the vehicle. Id. at 460-61.

» Neither party offers any evidence of service records. Id. at 461.

∴ Court’s Analysis: The Court implicitly determined that Defendant West One presented admissible evidence of its legitimate reason for the discharge. See id. at 461. Accordingly, the Court found that Davis presented facts raising “a genuine issue of material fact showing West One’s proffered reason for his termination was a pretext” for discrimination. EDITOR’S NOTE: the plaintiff’s duty to establish pretext is the third an final step of the McDonnel Douglas Burden-Shifting Framework. See id.

[3-5] DAVIS RAISED GENUINE ISSUES OF MATERIAL FACT REGARDING PRETEXT — SUMMARY JUDGMENT DISMISSAL OF THE RETALIATION CLAIM WAS INAPPROPRIATE: The Court concluded as follows: “Viewing the evidence in a light most favorable to Mr. Davis, as we must on summary judgment, we conclude that Mr. Davis has presented facts that raise a genuine issue of material fact whether West One’s proffered reason for his termination was a pretext.” Id. at 461 (citing Renz, 114 Wash.App. at 619, 60 P.3d 106).

“Summary judgment dismissal of Mr. Davis’s retaliation claim was not appropriate.” Id.

NOTABLES & IMPLICATIONS:

OVERCOMING SUMMARY JUDGMENT IN DISCRIMINATION CASES

(1) “In order to overcome a motion for summary judgment, a plaintiff in a discrimination case must establish specific and material facts to support each element of a prima facie case.” Id. (citing Marquis, 130 Wash.2d at 105, 922 P.2d 43).

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April 27, 2022May 26, 2022

Dailey v. North Coast Life Insurance Company, 129 Wn.2d 572 (Wash. 1996)

This is a case summary of Dailey v. North Coast Life Insurance Company, 129 Wn.2d 572 (Wash. 1996). Subjects include, but are not limited to the following:

» WASHINGTON LAW AGAINST DISCRIMINATION (“LAD” or “WLAD”)

» PUNITIVE (EXEMPLARY) DAMAGES

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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**Dailey v. North Coast Life Insurance Company, 129 Wn.2d 572 (Wash. 1996)**

case summary – 7 Facts:

[1] On March 16, 1990, Defendant North Coast Life Insurance Co. terminated Plaintiff Julie Dailey’s employment.

[2] Dailey and co-Plaintiff Gregory Dailey filed a wrongful termination claim that included an allegation of sex discrimination in violation of the LAD and specifically sought punitive damages.

[3] Both parties moved for partial summary judgment on the availability of punitive damages under the LAD.

[4] The trial court granted Plaintiffs’ motion, concluding RCW 49.60.030(2) both permitted punitive damages in an employment discrimination action and operated retrospectively.

[5] Defendants appealed.

[6] At the request of the Court of Appeals, the Supreme Court accepted certification of the case.

[7] We now reverse.

Dailey v. North Coast Life Insurance Company, 129 Wn.2d 572 (Wash. 1996) (hyperlinks added). This case summary includes both the Majority and Concurring Opinions.

» MAJORITY OPINION: DOLLIVER, Justice; DURHAM, C.J., and SMITH, GUY and MADSEN, JJ., concur.

**ISSUE #1 (Majority Opinion):** Did the trial court err in granting Plaintiff’s motion, concluding RCW 49.60.030(2) both permitted punitive damages in an employment discrimination action and operated retrospectively?

[1-1] WA STATE SUPREME COURT HAS CONSISTENTLY DISAPPROVED PUNITIVE DAMAGES AS CONTRARY TO PUBLIC POLICY: “Since its earliest decisions, this court has consistently disapproved punitive damages as contrary to public policy.” Dailey v. North Coast Life Insurance Company, 129 Wn.2d at 574 (citing Spokane Truck & Dray Co. v. Hoefer, 2 Wash. 45, 50-56, 25 P. 1072 (1891)).

[1-2] PUNITIVE DAMAGES IMPOSE ON DEFENDANT A PENALTY RESERVED FOR CRIMINAL SANCTIONS AND AWARD PLAINTIFF WITH WINDFALL BEYOND FULL COMPENSATION: “Punitive damages not only impose on the defendant a penalty generally reserved for criminal sanctions, but also award the plaintiff with a windfall beyond full compensation.” Id. (citing Kadoranian v. Bellingham Police Dep’t, 119 Wash.2d 178, 188, 829 P.2d 1061 (1992)).

[1-3] THE WA STATE LEGISLATURE HAS ASSURED THAT PLAINTIFFS MAY BECOME WHOLE THROUGH COMPENSATORY DAMAGES: “Particularly in the case of workplace discrimination, the Legislature has assured a plaintiff may ‘become whole’ through a full panoply of compensatory damages.” Id. (citing Barr v. Interbay Citizens Bank, 96 Wash.2d 692, 699-700, 635 P.2d 441, amended by 96 Wash.2d 692, 649 P.2d 827 (1982)).

[1-4] PUNITIVE DAMAGES REQUIRE EXPRESS LEGISLATIVE AUTHORIZATION: “Governing resolution of this case is the court’s long-standing rule prohibiting punitive damages without express legislative authorization.” Id. at 575 (internal citations omitted).

[1-5] FEDERAL CIVIL RIGHTS ACT:

Civil Rights Act of 1964 — Provided Private Remedies: “The Civil Rights Act of 1964 provided private remedies for employment discrimination in Title VII, historically authorizing only equitable relief.” Id.

Civil Rights Act of 1991 — Allowed Greater Trial Costs: “By the Civil Rights Act of 1991, Congress amended the 1964 Act to allow greater trial costs, including expert fees.” Dailey v. North Coast Life Insurance Company, 129 Wn.2d at 575-76 (citing 42 U.S.C. § 2000e-5(k); see Xieng v. Peoples Nat’l Bank, 120 Wash.2d 512, 528, 844 P.2d 389 (1993)).

“Revised Statutes” Amendments (42 U.S.C. § 1981a) — Allowed Compensatory and Punitive Damages for Intentional Employment Discrimination: “The 1991 Act also amended 42 U.S.C. § 1981a, known as the Revised Statutes, to permit compensatory and punitive damages in an action for intentional employment discrimination:

provided that the complaining party cannot recover under section 1981 of [the Revised Statutes (42 U.S.C. § 1981) ], the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.

Dailey, 129 Wn.2d at 576 (citing 42 U.S.C. § 1981a(a)(1)) (alteration in original) (paragraph formatting and hyperlinks added).

[1-6] WASHINGTON LAW AGAINST DISCRIMINATION (WLAD):

1973 — Private Equitable and Compensatory Relief Allowed Under the WLAD: “Since 1973, the Legislature has authorized private equitable and compensatory relief under the LAD:

to enjoin further violations, to recover the actual damages sustained by him, or both, together with the cost of suit including a reasonable attorney’s fees or any other remedy authorized by this chapter or the United States Civil Rights Act of 1964….

Dailey, 129 Wn.2d at 575 (citing former RCW 49.60.030(2)).

1993 — Legislature Amended the WLAD to Acknowledge the Civil Rights Act of 1991: “In 1993, the Legislature acknowledged the Civil Rights Act of 1991 by amending RCW 49.60.030(2) to ‘any other remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended.'” Dailey, 129 Wn.2d at 575 (citing RCW 49.60.030(2)) (hyperlink and emphasis added).

[1-7] UNDER CIVIL RIGHTS ACT OF 1991 PUNITIVE DAMAGES OPERATE PROSPECTIVELY ONLY: “The United States Supreme Court has determined punitive damages under the Civil Rights Act of 1991 operate prospectively only.” Dailey, 129 Wn.2d at 578 (citing Landgraf v. USI Film Prods., 511 U.S. 244, —-, 114 S.Ct. 1483, 1496, 128 L.Ed.2d 229 (1994)).

[1-8] PROVISION OF PUNITIVE DAMAGES, A PENALTY AND A NEW RIGHT OF ACTION DO NOT QUALIFY AS REMEDIAL AMENDMENT TO PERMIT PRSUMPTION OF RETROACTIVITY: “[T]he provision of punitive damages, a penalty and a new right of action [do not] qualify as a remedial amendment to permit a presumption of retroactivity.” Id. at 578 (citing Agency Budget Corp. v. Washington Ins. Guar. Ass’n, 93 Wash.2d 416, 425-26, 610 P.2d 361 (1980); Johnston v. Beneficial Management Corp., 85 Wash.2d 637, 640-41, 538 P.2d 510 (1975); see Landgraf, 511 U.S. at —-, 114 S.Ct. at 1506-07).

[1-9] THE STATUTORY AUTHORITY IS TOO AMBIGUOUS AND ATTENUATED TO BE EXPRESS: In this case, “[t]he trial court determined the LAD, RCW 49.60.30(2), expressly authorized punitive damages by incorporating that federal remedy by reference to the United States Civil Rights Act of 1991, 42 U.S.C. § 1981a(a)(1).” Dailey, 129 Wn.2d at 575 (citing Mackay v. Acorn Custom Cabinetry, Inc., 127 Wash.2d 302, 316, 898 P.2d 284 (1995) (Madsen, J., dissenting) (“noting RCW 49.60.030(2) does not authorize punitive damages under state law”)) (emphasis and hyperlinks added).

∴ Majority Court’s Analysis: “While we do not fault the trial court’s analytic framework, we find the statutory authority too ambiguous and attenuated to suffice as express.” Id.

[1-10] AMBIGUITIES PRECLUDE EXPRESS AUTHORIZATION FOR PUNITIVE DAMAGES: “Ambiguities cloud the relation between 42 U.S.C. § 1981a(a)(1) and RCW 49.60.030(2) to preclude characterization of their link as an express authorization for punitive damages.” Dailey, 129 Wn.2d at 576 (hyperlinks added).

∴ Majority Court’s Analysis — Amendment Limited to Costs:

“First, the structure of the language in RCW 49.60.030(2) arguably evinces an intent to incorporate only federal remedies qualifying as ‘costs.’ While the trial court read the provision as: ‘to recover the actual damages … together with … any other remedy …,’ we might reasonably read the term ‘including’ as restrictive: ‘the cost of suit including … any other remedy….’ Under the latter interpretation, punitive damages simply would fall outside the scope of the incorporation provision.” Dailey, 129 Wn.2d at 576 (hyperlink added).

“We need not choose between these alternative meanings … to decide the resultant ambiguity cannot overcome Washington’s policy against punitive damages.” Id.

∴ Majority Court’s Analysis — Implied Incorporation Is Not Express Authorization:

“We find equally disturbing the relation between the provision of punitive damages in the Civil Rights Act of 1991 and the Civil Rights Act of 1964. RCW 49.60.030(2) explicitly incorporates only the 1964 Act as amended, but whether the 1991 Act actually constitutes an amendment to the 1964 Act is unclear.” Dailey, 129 Wn.2d at 576 (hyperlink added).

“The Civil Rights Act of 1991 did not directly amend Title VII to permit punitive damages, but rather amended the Revised Statutes, 42 U.S.C. § 1981a. Indeed, the amendment explicitly describes compensatory and punitive damages ‘in addition to’ remedies available under the 1964 Act.” Dailey, 129 Wn.2d at 576-77 (citing 42 U.S.C. § 1981a(a)(1)) (hyperlinks added).

“An implied incorporation of the 1991 Act does not meet our standard for express authorization.” Id. at 577.

[1-11] THE COURT REAFFIRMS AND DISTINGUISHES XIENG: “The trial court found controlling this court’s prior analysis of the interplay between RCW 49.60.030(2) and the 1991 Act in Xieng, 120 Wash.2d 512, 844 P.2d 389.” Dailey, 129 Wn.2d at 577 (hyperlink added). “Analyzing the scope of the incorporation of federal remedies by reference, Xieng held express legislative authorization for expert witness fees under the LAD lies in the explicit expert witness fee provision of the Civil Rights Act of 1991…. The trial court concluded Xieng compelled incorporation of all federal relief provided in the 1991 Act.” Dailey, 129 Wn.2d at 577 (internal citations omitted).

∴ Majority Court’s Analysis: “We reaffirm and distinguish Xieng[ ][:]

Both the nature of the remedy and the relevant statutory authority in Xieng differ from the present case. Certainly expert witness fees have not received the extreme resistance and condemnation as punitive damages. See Spokane Truck, 2 Wash. at 50-56, 25 P. 1072.

Unlike the punitive damages provision, the expert witness fee provision contains an explicit amendment to the 1964 Civil Rights Act. 42 U.S.C. § 2000e-5(k).

Moreover, the presence of the explicit amendatory language in 42 U.S.C. § 2000e-5(k) reinforces our concern for the lack of an equally explicit amendment to the 1964 Act in 42 U.S.C. § 1981a(a)(1).

At the same time, the incorporation of expert witness fees in Xieng is consistent with an interpretation of RCW 49.60.030(2) as limiting the incorporation of federal remedies to costs of suit. See Xieng, 120 Wash.2d at 528, 844 P.2d 389.

Dailey, 129 Wn.2d at 577 (paragraph formatting added).

[1-12] IF LEGISLATURE INTENDED TO MAKE PUNITIVE DAMAGES AVAILABLE UNDER THE WLAD, IT WOULD HAVE UNAMIBUOUSLY SO PROVIDED: “Where the Legislature has intended the exceptional relief of punitive damages, the statute has contained an explicit authorization.” Id. at 577 (citing RCW 9.73.230(11); RCW 19.86.090). “The Legislature here, presumably aware of Congress’ decision to allow punitive damages in the 1991 Civil Rights Act, had the opportunity to follow suit in its 1993 amendments to the LAD.” Dailey, 129 Wn.2d at 577.

∴ Majority Court’s Analysis: “If the Legislature intended to make punitive damages available for employment discrimination under the LAD, it would have unambiguously so provided.” Id.

[1-13] PLAINTIFF’S CLAIM IS UNTIMELY — RETROSPECTIVE PUNITIVE DAMAGES ARE UNAVAILABLE: The Court “observe[d] that even if the LAD permitted punitive damages for employment discrimination generally, that relief would remain unavailable in the present case.” Id. at 578.

∴ Majority Court’s Analysis: “The Civil Rights Act, the only potential authorization for punitive damages under the LAD, did not permit that relief until 1991. Plaintiffs’ claim concerns conduct prior to 1991.” Id. “Retrospective punitive damages thus could not constitute a ‘remedy available’ under the Civil Rights Act.” Id. (citing RCW 49.60.030(2); McGinnis v. Kentucky Fried Chicken, 51 F.3d 805, 807-08 (9th Cir.1994)).

Conclusion of the issue — **-CONCLUSION-**

[1-14] PUNITIVE DAMAGES ARE UNAVAILABLE UNDER THE WLAD, RCW 49.60; RETROSPECTIVE PUNITIVE DAMAGES ARE UNAVAILABLE UNDER THE FEDERAL CIVIL RIGHTS ACT: In this case, the Court held that “punitive damages are unavailable under the Law Against Discrimination (LAD), RCW 49.60.” Dailey, 129 Wn.2d at 574 (hyperlink added). Moreover, “[r]etrospective punitive damages … could not constitute a ‘remedy available’ under the Civil Rights Act.” Id. at 578.

» CONCURRING OPINION: TALMADGE, Justice (concurring); JOHNSON, ALEXANDER and SANDERS, JJ., concur.

“Although I agree with the majority that the trial court erred in granting summary judgment for Ms. Dailey in this case, I disagree with the majority’s analysis on exemplary damages under RCW 49.60.030(2), and therefore write separately.” Dailey v. North Coast Life Insurance Company, 129 Wn.2d at 578 (emphasis added). NOTE: The term “exemplary damages” is synonymous with punitive damages. See Black’s Law Dictionary 417 (8th ed. 2004).

**ISSUE #2 (Concurring Opinion):** Did “the Legislature intend[ ] by its 1993 amendments to RCW 49.60, our Law Against Discrimination, to incorporate the remedy of exemplary damages allowed in federal civil rights actions[ ]”?

[2-1] FEDERAL LAW

Before 1991 — Punitive Damages Unavailable to Federal Civil Rights Plaintiffs: “Prior to 1991, a successful federal civil rights plaintiff generally could not recover exemplary damages.” Dailey, 129 Wn.2d at 578-79 (citing 42 U.S.C. § 2000e-5).

After 1991 — Punitive Damages Available to Successful Litigants Under the Civil Rights Act of 1964: “In the 1991 Civil Rights Act, Congress included a new statutory section, 42 U.S.C. § 1981a, which provides:

In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 [42 U.S.C. §§ 2000e-5, 2000e-16] against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) prohibited under section 703, 704, or 717 of the Act [42 U.S.C. §§ 2000e-2, 2000e-3], and provided that the complaining party cannot recover under section 1981 of this title, the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.

Dailey, 129 Wn.2d at 579 (emphasis and hyperlinks added). Thus, “[u]nder the terms of the statute, a successful litigant under the Civil Rights Act of 1964 can recover exemplary damages.” Dailey, 129 Wn.2d at 579.

[2-2] WASHINGTON LAW

1993 Amendments: “In 1993, the Washington Legislature adopted amendments to RCW 49.60.030(2) relating to private actions under RCW 49.60, allowing a party to seek:

to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, …

Dailey, 129 Wn.2d at 580 (citing Laws of 1993, ch. 69, § 1; Laws of 1993, ch. 510, § 3(2)) (emphasis in original) (hyperlinks added). “The ‘as amended’ language was adopted in two separate legislative enactments by the 1993 Legislature, ch. 69, Laws of 1993, § 1 and ch. 510, Laws of 1993, § 3(2).” Dailey, 129 Wn.2d at 580.

1995 Reenactment: “The Legislature reenacted RCW 49.60.030(2) in its present form combining the disparate amendments to RCW 49.60.030 in Ch. 135, Laws of 1995, § 3.” Dailey, 129 Wn.2d at 580. “Thus, on three separate occasions in 1993 and 1995, the Legislature adopted legislative language incorporating into RCW 49.60 remedies authorized by the 1991 amendment to the Civil Rights Act of 1964.” Dailey, 129 Wn.2d at 580 (hyperlinks added).

The Legislature Intended to Incorporate Federal Remedies in the WLAD: “By adopting the ‘as amended’ language in 1993 and 1995, the Legislature intended to incorporate federal remedies in RCW 49.60.” Dailey, 129 Wn.2d at 581 (hyperlink added).

Rule of Statutory Construction (Presumed Awareness): “The Legislature is presumed to be aware of judicial interpretation of its statutes.” Id. at 581 (citing Friends of Snoqualmie Valley v. King County Boundary Review Bd., 118 Wash.2d 488, 496, 825 P.2d 300 (1992)).

Rule of Statutory Construction (Presumption of Acquiescence): “Another principle of statutory construction [is that] “Legislative silence regarding the construed portion of the statute in a subsequent amendment creates a presumption of acquiescence in that construction.” Id. (citing Baker v. Leonard, 120 Wash.2d 538, 545, 843 P.2d 1050 (1993)) (internal citations omitted).

[2-3] RETROACTIVE APPLICATION OF THE 1993 AMENDMENTS: “In Landgraf v. U.S.I. Film Prods., a former employee brought an action alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964[ ][:]

The United States Supreme Court held the provisions of the 1991 Civil Rights Act, including 42 U.S.C. § 1981a, do not apply to a case pending on appeal when the statute was enacted, and had prospective effect only. The Court declined to apply the 1991 amendments retroactively unless Congress made clear such an intent. The Court found no such clear Congressional intent for retroactive application of the 1991 amendments.

Dailey, 129 Wn.2d at 582 (citing Landgraf v. U.S.I. Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 1505, 128 L.Ed.2d 229 (1994)) (hyperlinks added).

[2-4] FEDERAL LAW — SUCCESSFUL CLAIMANTS MAY RECOVER PUNITIVE DAMAGES UNDER THE 1964 CIVIL RIGHTS ACT AS AMENDED BY 1991 LEGISLATION:

“The majority determines the 1991 Civil Rights Act may not have amended the 1964 Civil Rights Act, majority op. at 5, based on an argument first raised by amicus Washington Defense Trial Lawyers Association that 42 U.S.C. § 1981a is a separate section and does not actually amend the text of the Civil Rights Act of 1964.” Dailey, 129 Wn.2d at 579 (hyperlink added).

∴ Concurring Court’s Analysis: “This hypertechnical argument ignores the plain language of 42 U.S.C. § 1981a(a)(1) allowing exemplary damages in ‘an action brought by a complaining party under § 706 or 717 of the Civil Rights Act of 1964 …'” Dailey, 129 Wn.2d at 579 (hyperlink added).

Example: McGinnis v. Kentucky Fired Chicken: “In McGinnis v. Kentucky Fried Chicken, 42 F.3d 1273 (9th Cir.), amended and superseded by 51 F.3d 805 (9th Cir.1994), the United States Court of Appeals for the Ninth Circuit specifically held punitive damages are allowed under the Civil Rights Act of 1964 as amended by the 1991 Civil Rights Act: ‘Punitive damages are authorized by that statute today.'” Dailey, 129 Wn.2d at 579-80 (internal citations omitted).

Example: Landgraf v. U.S.I. Film Prods.: “The United States Supreme Court in Landgraf v. U.S.I. Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) similarly held exemplary punitive damages were available under the Civil Rights Act of 1964.” Dailey, 129 Wn.2d at 580.

“As interpreted by the federal courts, successful federal civil rights claimants may recover exemplary damages under the 1964 Civil Rights Act, as amended by the 1991 legislation, as a means of enforcing federal antidiscrimination law.” Dailey, 129 Wn.2d at 580.

[2-5] WASHINGTON LAW — EXPRESS AUTHORIZATION DOES NOT REQUIRE THE SPECIFIC WORDS “PUNITIVE DAMAGES”

“Notwithstanding … the statutory language, the majority finds exemplary damages are unavailable to claimants under RCW 49.60.030 because of Washington’s strong public policy against punitive damages.” Dailey, 129 Wn.2d at 580 (internal citations omitted) (hyperlink added). “The majority asserts exemplary damages are unavailable under Washington law in the absence of express statutory authorization. By this, the majority seems to mean the Legislature must use the specific words “punitive damages.” Id. at 580-81.

∴ Concurring Court’s Analysis:

“This argument is too literal and ignores the clear direction of RCW 49.60.030 and the legislative history of the state and federal enactments.” Id. at 581 (hyperlink added).

The McGinnis Case. “By 1995, when the Legislature again amended RCW 49.60.030(2), the Legislature had the benefit of the decisions in Landgraf and McGinnis[ ][:]

In McGinnis, the Ninth Circuit held exemplary damages are available to successful claimants under RCW 49.60 because RCW 49.60.030(2) incorporated federal remedies and the Civil Rights Act of 1964, as amended in 1991, permitted successful claimants to recover exemplary damages.

Dailey, 129 Wn.2d at 581 (hyperlinks added).

Canons of Statutory Construction. “[T]he Legislature [was not] ignorant of the nature of its own actions. As we have stated: The Legislature is presumed to be aware of judicial interpretation of its statutes.” Id. “Another principle of statutory construction [is that] ‘Legislative silence regarding the construed portion of the statute in a subsequent amendment creates a presumption of acquiescence in that construction.'” Id. “The Legislature had to know it was incorporating the federal remedy of punitive damages into RCW 49.60.” Dailey, 129 Wn.2d at 581 (hyperlink added).

Legislature’s Intent Rendered Meaningless. “By adopting the ‘as amended’ language in 1993 and 1995, the Legislature intended to incorporate federal remedies in RCW 49.60. But the majority’s interpretation of RCW 49.60.030(2) renders virtually meaningless the Legislature’s intent[:]

RCW 49.60.030(2) specifically mentions injunctive relief, and recovery of actual damages, costs and a reasonable attorney fee. We have already allowed expert witness fees as a cost of litigation. Xieng v. Peoples Nat’l Bank, 120 Wash.2d 512, 528, 844 P.2d 389 (1993)).

The reference to federal law remedies must be intended to expand upon the already mentioned remedies. However, beyond injunctive relief, compensatory damages, costs and attorney fees, nothing of substance is left but the punitive damages added to federal law in 1991.

Dailey, 129 Wn.2d at 581-82 (hyperlinks added). “The Legislature clearly understood it was adopting exemplary damages as part of Washington’s antidiscrimination law when it amended RCW 49.60.030(2) in 1993 and 1995.” Dailey, 129 Wn.2d at 582 (hyperlink added).

[2-6] RETROACTIVE APPLICATION OF THE 1993 AMENDMENTS: “Counsel for Ms. Dailey argues the amendments to RCW 49.60.030(2) must be applied retroactively because they are remedial in nature.” Dailey, 129 Wn.2d at 582.

∴ Concurring Court’s Analysis: “I disagree. Because the Legislature adopted a federal remedy, we are obliged to construe the federal remedy in accordance with Congressional intent as understood by the federal courts.” Id. at 582 (citing Xieng, 120 Wash.2d at 528-29, 844 P.2d 389).

“The United States Supreme Court in Landgraf determined the 1991 amendments to the Civil Rights Act of 1964 providing for compensatory and punitive damages could not be retroactively applied. If Ms. Dailey may not recover exemplary damages under federal law, she may not recover exemplary damages under RCW 49.60.030(2), as amended.” Dailey, 129 Wn.2d at 582-83.

[2-7] FEDERAL CIVIL RIGHTS CLAIMANTS MAY RECOVER PUNITIVE DAMAGES UNDER CIVIL RIGHTS ACT OF 1964, AS AMENDED; WA LEGISLATURE CLEARLY UNDERSTOOD IT WAS ADOPTING PUNITIVE DAMAGES WHEN IT AMENDED RCW 49.60.030(2); AND PLAINTIFF CANNOT RETROACTIVELY APPLY PUNITIVE DAMAGES:

The concurring Court evaluated this case based on three categories and concluded as follows:

1. Regarding Federal Law:

As interpreted by the federal courts, successful federal civil rights claimants may recover exemplary damages under the 1964 Civil Rights Act, as amended by the 1991 legislation, as a means of enforcing federal antidiscrimination law.

Dailey, 129 Wn.2d at 580.

2. Regarding WA Law:

The Legislature clearly understood it was adopting exemplary damages as part of Washington’s antidiscrimination law when it amended RCW 49.60.030(2) in 1993 and 1995.

Dailey, 129 Wn.2d at 582

3. Regarding Retroactive Application of 1993 Amendments:

The United States Supreme Court in Landgraf determined the 1991 amendments to the Civil Rights Act of 1964 providing for compensatory and punitive damages could not be retroactively applied. If Ms. Dailey may not recover exemplary damages under federal law, she may not recover exemplary damages under RCW 49.60.030(2), as amended.

Dailey, 129 Wn.2d at 582-83.

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February 17, 2022May 26, 2022

Marquis v. City of Spokane (Majority Opinion), 130 Wn.2d 97 (Wash. 1996)

This is a case summary of the majority opinion for Marquis v. City of Spokane, 130 Wn.2d 97, 922 P.2d 43 (Wash. 1996); it does not include the dissent. Subjects include, but are not limited to the following:

» SEXUAL DISCRIMINATION UNDER WLAD

» INDEPENDENT CONTRACTORS

» MAKING/PERFORMANCE OF CONTRACT FOR EMPLOYMENT

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Marquis v. City of Spokane (Majority Opinion), 130 Wn.2d 97 (Wash. 1996) — **Marquis v. City of Spokane (Majority Opinion), 130 Wn.2d 97, 922 P.2d 43 (Wash. 1996)**

case summarY – 36 Facts:

[1] In December 1986 Plaintiff Patti Marquis entered into a three-year contract with the City of Spokane to serve as the golf professional at Downriver Golf Course, one of three golf courses owned by the City.

[2] The City had solicited proposals from qualified golf professionals for the position and Ms. Marquis was personally recruited for the job by the City’s Director of Parks and Recreation.

[3] A final contract was not published as a “take it or leave it” offer by the City; instead, golf professionals were invited to submit proposals based on a sample contract provided by the City.

[4] Selection of the finalists was made by reviewing the proposed contracts.

[5] Ms. Marquis was selected as the City golf committee’s first choice to negotiate a final contract.

[6] Under the terms of the contract negotiated between Ms. Marquis and the City, Ms. Marquis had responsibility for operating the golf course, practice range, pro shop, cafe, food services, and clubhouse.

[7] Although the terms of the contract provided only for extensions of two additional one-year terms, Ms. Marquis was told during the original contract negotiations that she could expect a long career at Downriver Golf Course and that her contract would be continually renewed so long as she performed her job.

[8] The previous golf pro at Downriver had worked as the manager at that golf course for 31 years.

[9] While she was serving as golf professional at Downriver, Ms. Marquis learned that the compensation she was receiving under her contract was different from the compensation of the golf professionals–both male–who operated the other city-owned golf courses.

[10] According to a financial planner who submitted an affidavit in support of Ms. Marquis’ position, a review of the contracts of the City’s three golf professionals and the various revenues generated by each golf course from 1987 to 1989 showed that Ms. Marquis was paid less than the male golf professionals each year–averaging about $12,000 less than one of the men and approximately $37,000 less than the other.

[11] When she expressed concern regarding the discrepancies in income, the City’s golf manager asked why she was worried about it as she was married to a doctor.

[12] A member of the City’s golf committee responded, “If you can’t take the heat, get out of the kitchen.”

[13] Ms. Marquis also alleges she was subjected to discriminatory treatment during the course of her tenure at Downriver Golf Course.

[13a] For example, she claims she was criticized for hiring a woman, rather than a man, as her assistant. She alleges she received weekly telephone calls from the City’s golf manager, criticizing her for minor violations of her contract.

[13b] For example, she was criticized or reprimanded for allowing a dog to be in the parking lot; for having family members help out, without pay, when a regular employee did not show up for work; for not having two employees behind the counter in the pro shop at all times; and for spending too much time in her office.

[14] Ms. Marquis alleges that substantially similar conduct by the male golf pros was not criticized and the male golf pros were not similarly reprimanded by the City.

[15] She also alleges she was reprimanded for incidents which were demonstrated not to have occurred.

[15a] For example, the City sent Ms. Marquis a letter of reprimand accusing her and her assistant golf pro of giving a golfer permission to take liquor onto the golf course.

[16] The letter was made a part of her file, even though Ms. Marquis, the assistant pro, and the golfer denied that this incident had ever occurred.

[17] Just prior to December 31, 1989, when Ms. Marquis’ contract was to expire, negotiations for a new contract began.

[18] Revenues at Downriver had increased by 34 percent during the contract period, and Ms. Marquis appeared to have the support of the golfers who used the course.

[19] She says she therefore expected to be offered a longer contract during the negotiations.

[20] However, based on the reprimands in her file, the City refused to unconditionally renew her contract and, instead, offered a one-year probationary contract.

[21] Ms. Marquis states she was not able to accept the reasons for the new contract’s restrictions and that she could not continue working under the same conditions.

[22] She therefore terminated the negotiations and her contract expired on December 31, 1989.

[23] She then filed this action alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and in violation of this state’s law against discrimination, RCW 49.60. (Footnote omitted).

[24] The City filed two motions for summary judgment.

[25] In the first, the City argued that the Title VII claim should be dismissed on the ground that Ms. Marquis, as an independent contractor, lacked standing to bring an action under the federal law and, further, that she failed to exhaust administrative remedies that are a prerequisite to bringing a Title VII action.

[26] The City also argued that Ms. Marquis had failed to present evidence supporting each element of her discrimination claims.

[27] The trial court dismissed the Title VII claims but found Ms. Marquis had established a genuine issue of fact with respect to the existence of sex discrimination under state law and denied the motion with respect to the state claim.

[28] The City’s second motion for summary judgment requested dismissal of discrimination claims brought pursuant to RCW 49.60.030(1).

[29] The City argued that Washington’s law against discrimination does not prohibit discrimination against independent contractors.

[30] The trial court agreed and dismissed the discrimination claims.

[31] The Court of Appeals reversed. Marquis v. City of Spokane, 76 Wash.App. 853, 888 P.2d 753 (1995).

[32] With respect to Ms. Marquis’ appeal, the Court of Appeals held that the prohibition against discrimination in the workplace contained in RCW 49.60.030 was not limited to the employer/employee relationship and could reasonably be interpreted to incorporate other rights recognized by federal law, including contract rights protected by former 42 U.S.C. § 1981 (prohibiting discrimination in the making of contracts on the basis of race). (Footnote omitted).

[33] Thus, the court held that RCW 49.60.030 creates a cause of action for independent contractors based on sex discrimination in the making of contracts for personal services.

[34] The court also held that Ms. Marquis had presented evidence constituting a prima facie case.

[35] Because the City countered with evidence that the contract differences were based on legitimate nondiscriminatory reasons, a genuine issue of fact was created, making summary judgment improper.

[36] The City petitioned for review and this court agreed to review the issues presented by both parties.

Marquis v. City of Spokane, 130 Wn.2d 97, 922 P.2d 43 (Wash. 1996).

ISSUE #1: “Does an independent contractor who claims she was treated unfairly in the negotiation and performance of a contract for personal services have a cause of action for sex discrimination under RCW 49.60.030?” Id. at 104.

[1-1] SUMMARY JUDGMENT: DE NOVO REVIEW: For cases involving appeal from an order granting summary judgment, “[r]eview is … de novo and the court engages in the same inquiry as the trial court.” Marquis, 130 Wn.2d at 105 (citing Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982); Hiatt v. Walker Chevrolet Co., 120 Wash.2d 57, 65, 837 P.2d 618 (1992)). “That inquiry is whether there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law.” Id. (citing Fahn v. Cowlitz County, 93 Wash.2d 368, 373, 610 P.2d 857 (1980)).

[1-2] SUMMARY JUDGMENT: IMPROPER WHEN THERE ARE ISSUES OF MATERIAL FACT: “We consider the evidence and the reasonable inferences therefrom in a light most favorable to the nonmoving party.” Id. at 105 (citing Schaaf v. Highfield, 127 Wash.2d 17, 21, 896 P.2d 665 (1995)). “If we determine there is a dispute as to any material fact, then summary judgment is improper.” Id. (citing Hiatt, 120 Wash.2d at 65, 837 P.2d 618). “However, where reasonable minds could reach but one conclusion from the admissible facts in evidence, summary judgment should be granted.” Id. (citing CR 56(c); LaMon v. Butler, 112 Wash.2d 193, 199, 770 P.2d 1027, cert. denied, 493 U.S. 814, 110 S.Ct. 61, 107 L.Ed.2d 29 (1989)).

[1-3] SUMMARY JUDGMENT: NEED MORE THAN OPINIONS OR CONCLUSORY STATEMENTS: “In order for a plaintiff alleging discrimination in the workplace to overcome a motion for summary judgment, the worker must do more than express an opinion or make conclusory statements.” Id. (citing Grimwood v. University of Puget Sound, Inc., 110 Wash.2d 355, 359-60, 753 P.2d 517 (1988), abrogated on other grounds by Mikkelson v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 404 P.3d 464 (2017)). “The worker must establish specific and material facts to support each element of his or her prima facie case.” Id. (citing Hiatt, 120 Wash.2d at 66-67, 837 P.2d 618).

[1-4] THE WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): HISTORY:

1949: “Washington’s law against discrimination was enacted in 1949 as an employment discrimination law.” Id. at 105 (citing Laws of 1949, ch. 183). “The law prohibited discrimination in employment on the basis of race, creed, color or national origin.” Id.

1957: “The scope of protection under the law was expanded in 1957, when the law was amended to prohibit discrimination not only in employment but also in places of public resort, accommodation or amusement, and in publicly assisted housing because of race, creed, color or national origin.” Id. at 105-06 (citing Laws of 1957, ch. 37). “The 1957 amendment provided that the right to be free from discrimination included but was not limited to the rights listed in the chapter.” Id. at 106 (citing Laws of 1957, ch. 37, § 3).

1973: “In 1973 the law was amended to specifically prohibit discrimination in credit and insurance transactions. That same year sex, marital status, age, and disability were added as unlawful bases for discrimination.” Id. (citing Laws of 1973, ch. 141; Laws of 1973, 1st Ex.Sess., ch. 214).

Currently: “Although the law has been amended since that time, it remains substantially the same as it was following the 1973 amendments.” Id.

“The law against discrimination, RCW 49.60, includes general provisions recognizing that the right to be free from discrimination because of race, creed, color, national origin, sex, marital status, age or disability is a civil right.” Marquis, 130 Wn.2d at 106 (citing RCW 49.60.010, .030(1)) (footnote omitted) (hyperlink added).

“RCW 49.60.030(1) does not include age or marital status within the enumeration of protected classes. Discrimination in employment because of age or marital status is prohibited under RCW 49.60.180 and RCW 49.44.090(age).” Marquis, 130 Wn.2d at 128 n.3 (hyperlinks added).

Human Rights Commission: “The law also establishes the Human Rights Commission and gives that agency ‘powers with respect to elimination and prevention of discrimination’ in employment and in other specified areas, RCW 49.60.010, as well as the power to investigate and rule on complaints alleging unfair practices as defined in the statute.” Marquis, 130 Wn.2d at 106 (citing RCW 49.60.120(4)) (footnote omitted) (hyperlink added).

[1-5] WLAD: RCW 49.60.030: “The provision of the statute which is involved in this appeal is the following:

(1) The right to be free from discrimination because of race, creed, color, national origin, sex, or the presence of any sensory, mental, or physical disability is recognized as and declared to be a civil right. This right shall include, but not be limited to:

(a) The right to obtain and hold employment without discrimination;

….

(2) Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964….

Marquis, 130 Wn.2d at 106-07 (citing RCW 49.60.030(1) (part), (2)) (footnote omitted).

[1-6] RULES OF STATUTORY CONSTRUCTION: STATUTE CLEAR ON ITS FACE NOT SUBJECT TO JUDICIAL INTERPRETATION: “Rules of statutory construction provide that a statute which is clear on its face is not subject to judicial interpretation.” Id. at 107 (citing In re Marriage of Kovacs, 121 Wash.2d 795, 804, 854 P.2d 629 (1993)).

[1-7] RULES OF STATUTORY CONSTRUCTION: RCW 49.60.030(1) IS UNAMBIGUOUS AND UNCLEAR: UNCLEAR STATUTES ARE INTERPRETED IN MANNER THAT BEST FULFILLS LEGISLATIVE PURPOSE AND INTENT: The Washington State Supreme Court agreed with the Court of Appeals “that RCW 49.60.030(1) is unambiguous to the extent that it sets forth a nonexclusive list of rights.” Marquis, 130 Wn.2d at 107 (hyperlink added). “However, the statute is unclear to the extent that it makes a broad statement of rights, without defining the scope of those rights. If a statute is unclear, and thus subject to judicial interpretation, it will be interpreted in the manner that best fulfills the legislative purpose and intent.” Id. at 107-08 (citing In re Marriage of Kovacs, 121 Wash.2d at 804, 854 P.2d 629).

[1-8] WLAD LEGISLATIVE PURPOSE: “The legislative purpose of Washington’s law against discrimination is set forth in the statute itself. RCW 49.60.010 provides:

This chapter shall be known as the ‘law against discrimination.’ It is an exercise of the police power of the state for the protection of the public welfare, health, and peace of the people of this state, and in fulfillment of the provisions of the Constitution of this state concerning civil rights.

The legislature hereby finds and declares that practices of discrimination against any of its inhabitants because of race, creed, color, national origin, families with children, sex, marital status, age, or the presence of any sensory, mental, or physical disability … are a matter of state concern, that such discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state.

A state agency is herein created with powers with respect to elimination and prevention of discrimination in employment, in credit and insurance transactions, in places of public resort, accommodation, or amusement, and in real property transactions because of race, creed, color, national origin, families with children, sex, marital status, age, or the presence of any sensory, mental, or physical disability …; and the commission established hereunder is hereby given general jurisdiction and power for such purposes.

RCW 49.60.010 (paragraph formatting and hyperlinks added).

[1-9] WLAD CONTAINS STATUTORY MANDATE OF LIBERAL CONSTRUCTION: REQUIRES COURTS VIEW WITH CAUTION ANY CONSTRUCTION NARROWING COVERAGE OF THE LAW: WLAD “also requires liberal construction in order to accomplish the purposes of the law and states that nothing contained in the law shall ‘be construed to deny the right to any person to institute any action or pursue any civil or criminal remedy based upon an alleged violation of his or her civil rights.'” Id. at 108 (citing RCW 49.60.020).

“Further, we have held that a statutory mandate of liberal construction requires that we view with caution any construction that would narrow the coverage of the law.” Id. (citing Shoreline Community College Dist. No. 7 v. Employment Sec. Dep’t, 120 Wash.2d 394, 406, 842 P.2d 938 (1992)).

[1-10] WLAD PURPOSE IS TO DETER AND READICATE DISCRIMINATION IN WASHINGTON: PLAINTIFF BRINGING DISCRIMINATION CASE ASSUMES ROLE OF PRIVATE ATTORNEY GENERAL: “This court has held that the purpose of the law is to deter and to eradicate discrimination in Washington … and has stated that a plaintiff bringing a discrimination case in Washington assumes the role of a private attorney general, vindicating a policy of the highest priority.” Id. at 109 (citing Allison v. Housing Auth., 118 Wash.2d 79, 86, 821 P.2d 34 (1991)).

[1-11] WLAD POLICY AGAINST SEX DISCRIMINATION: EVIDENCED BY ENACTMENT OF EQUAL RIGHTS AMENDMENT: “This state’s strong policy against sex discrimination is further evidenced by its enactment of the Equal Rights Amendment to the state constitution.” Id. at 109 (citing Const. art. XXXI, §§ 1-2 (amend. 61) (“equality of right shall not be denied or abridged on account of sex and the legislature has the power to enforce the provisions of the amendment by appropriate legislation”)) (hyperlink added).

[1-12] TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 (TITLE VII): “In construing the law against discrimination, we have sometimes looked for guidance to cases interpreting equivalent federal law.” Id. (citing Xieng v. Peoples Nat’l Bank, 120 Wash.2d 512, 518, 844 P.2d 389 (1993)).

INDEPENDENT CONTRACTORS: TITLE VII DOES NOT APPLY: “Federal cases have interpreted Title VII of the federal act to apply in the employment setting, but not to independent contractors.” Id. (citing Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 380 (7th Cir.1991) (“insurance agent was independent contractor, not an employee of insurance company, and thus not protected by Title VII”) (hyperlink added); Lutcher v. Musicians Union Local 47, 633 F.2d 880 (9th Cir.1980) (“musician was not entitled to protections of Title VII where musician performed as independent contractor, not as employee”)) (internal citation omitted).

INDEPENDENT CONTRACTORS: TITLE VII INAPPLICABILITY BASED ON DEFINITION AND LEGISLATIVE HISTORY: “The federal decisions appear to be based in part on the definition of ’employee’ contained in Title VII, 42 U.S.C. § 2000e(f) (’employee’ means an individual employed by an employer), and in part on legislative history.” Marquis, 130 Wn.2d at 109-10 (citing Musicians Union, 633 F.2d at 883 (“the legislative history of Title VII reveals that the statute’s purpose was to eliminate discrimination in employment; consequently, there must be some connection with an employment relationship for Title VII to apply”) (hyperlinks added).

[1-13] WLAD vs. TITLE VII: TITLE VII NOT HELPFUL IN DETERMINING THE SCOPE OF RCW 49.60.030(1): “The language of our statute’s definition section differs from that of Title VII.” Id. at 110 (hyperlink added).

[1-13a] The Term “Employee”: “RCW 49.60.040(4) states that the term ’employee’ does not include a person employed by his or her parents, spouse, or child, or one who is in the domestic service of any person. The term ’employee’ is not further defined, and we therefore presume the legislature intended the word to mean what it did at common law, as limited by the statute.” Marquis, 130 Wn.2d at 110 (citing In re Brazier Forest Prods., Inc., 106 Wash.2d 588, 595, 724 P.2d 970 (1986)) (hyperlink added).

“The common law distinguishes between employees and independent contractors, based primarily on the degree of control exercised by the employer/principal over the manner of doing the work involved.” Id. (citing Fardig v. Reynolds, 55 Wash.2d 540, 544, 348 P.2d 661 (1960); Phillips v. Kaiser Aluminum & Chem. Corp., 74 Wash.App. 741, 749 n. 23, 875 P.2d 1228 (1994)).

“We read the statute with that distinction in mind. However, we find that the statute does not foreclose a cause of action to an independent contractor because, by its own terms, RCW 49.60.030(1) does not limit the actions which may be brought to those listed in the statute.” Marquis, 130 Wn.2d at 110 (hyperlink added).

[1-13b] Categories of Discrimination: “Unlike our state law against discrimination, Title VII is limited to employment discrimination. Unlike our state law against discrimination, Title VII does not contain a broad statement of the right to be free of discrimination in other areas[ ][;] [o]ur state law does.” Id. (citing RCW 49.60.010) (footnote omitted) (hyperlinks added).

[1-13c] Policy of Liberal Construction: “While Title VII of the Civil Rights Act of 1964 is similar to RCW 49.60.180, the provision delineating unfair practices in employment, there is no provision in the federal law which sets forth the equivalent of the broad language of RCW 49.60.030(1) and there is no statutory provision requiring liberal construction in order to accomplish the purposes of the act.” Marquis, 130 Wn.2d at 110-11 (citing Allison, 118 Wash.2d at 88, 821 P.2d 34) (hyperlinks added).

“Federal cases interpreting Title VII are thus not helpful in determining the scope of RCW 49.60.030(1).” Marquis, 130 Wn.2d at 111.

[1-14] WASHINGTON STATE HUMAN RIGHTS COMMISSION (WSHRC): COURTS MUST GIVE GREAT WEIGHT TO STATUTE’S INTERPRETATION BY AGENCY CHAGRED WITH ITS ADMINISTRATION “In addition to the language of the statute itself, we may also look to the Human Rights Commission‘s interpretation of the law as an aid in construing RCW 49.60.” Marquis, 130 Wn.2d at 111 (hyperlink added). “A court must give great weight to the statute’s interpretation by the agency which is charged with its administration, absent a compelling indication that such interpretation conflicts with the legislative intent.” Id. (citing Washington Water Power Co. v. Washington State Human Rights Comm’n, 91 Wash.2d 62, 68-69, 586 P.2d 1149 (1978)).

[1-15] WASHINGTON ADMINISTRATIVE CODE (WAC): INDEPENDENT CONTRACTORS: “WAC 162-16-170, a rule promulgated by the Human Rights Commission, states in pertinent part:

(1) Purpose of section. RCW 49.60.180 defines unfair practices in employment. A person who works or seeks work as an independent contractor, rather than as an employee, is not entitled to the protection of RCW 49.60.180….

(2) Rights of independent contractor. While an independent contractors [sic] does not have the protection of RCW 49.60.180, the contractor is protected by RCW 49.60.030(1) from discrimination because of race, creed, color, national origin, sex, handicap, or foreign boycotts. The general civil right defined in RCW 49.60.030(1) is enforceable by private lawsuit in court under RCW 49.60.030(2) but not by actions of the Washington state human rights commission.

Marquis, 130 Wn.2d at 111 (citing WAC 162-16-170 (currently WAC 162-16-230)) (hyperlinks added).

[1-16] DEFENDANT’S ARGUMENT: NARROW READING OF STATUTE: In this case, “[t]he City argues that RCW 49.60.030 should be construed so as to limit causes of action for discriminatory treatment to violations of the particular rights listed in the statute. In the City’s view the statute should be read to prohibit discrimination in ’employment’ and would apply to protect ’employees,’ but not ‘independent contractors’ hired to perform services.” Marquis, 130 Wn.2d at 107.

COURT’S RESPONSE: Here, the Court initially determined “[t]he Court of Appeals found that the ‘statutory list [contained in RCW 49.60.030], by its own terms, is not exclusive’ and can be interpreted to incorporate other rights recognized in state or federal law.” Marquis, 130 Wn.2d at 107 (internal citations omitted) (second alteration in original) (hyperlink added). The Court agreed and concluded “that RCW 49.60.030(1) is unambiguous to the extent that it sets forth a nonexclusive list of rights.” Marquis, 130 Wn.2d at 107 (hyperlink added).

[1-17] DEFENDANT’S ARGUMENT: HUMAN RIGHTS COMMISSION HAS NO AUTHORITY TO ENACT THE SUBJECT REGULATION: “The City argued, and the trial court agreed, that the Human Rights Commission had no authority to enact this regulation.” Id. at 111.

COURT’S RESPONSE: The Court disagreed. See id at 111. “An administrative agency is limited to the powers and authority granted to it by the legislature.” Id. (internal citations omitted).

[1-18] DEFENDANT’S ARGUMENT: THE REGULATION CREATES AN ADDITIONAL PROTECTED CLASS: “The City argues that the WAC regulation relating to independent contractors creates an additional protected class–that of ‘independent contractors.'” Id. at 112.

COURT’S RESPONSE: “The regulation does not create a new class. Under the statute or under the regulation, an independent contractor would have to show that he or she was a member of a protected class (i.e., a class based on race, creed, sex, national origin, etc.), not merely that he or she was an independent contractor.” Id.

“In light of the statute’s broad mandate to the Human Rights Commission to prevent and eliminate discrimination, we find WAC 162-16-170(2) consistent with the legislative purpose behind the act, a valid exercise of the Commission’s authority, and we give it great weight in construing RCW 49.60.030(1).” Id. (paragraph formatting and hyperlink added).

[1-19] COURT OF APPEALS’ ANALYSIS: RCW 49.60.030(1) COULD BE INTERPRETED TO INCLUDE RIGHT TO BE FREE OF DISCRIMINATION IN MAKING OF CONTRACTS: “The Court of Appeals looked to civil rights accorded under related federal statutes to determine that RCW 49.60.030(1) could reasonably be interpreted to include the right to be free of discrimination in the making of contracts.” Id. at 112 (hyperlink added).

COURT’S RESPONSE: WITHOUT REFERENCE TO FEDERAL LAW, RCW 49.60.030(1) CAN BE INTERPRETED TO INCLUDE CIVIL RIGHT OF INDEPENDENT CONTRACTORS TO BE FREE OF UNLWAFUL DISCRIMINATION IN MAKING & PERFORMANCE OF CONTRACTS FOR PERSONAL SERVICES: “While federal laws can provide assistance in interpreting the Washington law against discrimination, it is unnecessary to look to the federal law to determine whether a cause of action exists under state law in this case. RCW 49.60.030(1) is broadly stated, is to be liberally construed and, as part of the law against discrimination, is meant to prevent and eliminate discrimination in the State of Washington. Without reference to federal law, RCW 49.60.030(1) can be interpreted to include the civil right of independent contractors to be free of unlawful discrimination in the making and performance of contracts for personal services.” Id. (hyperlinks added).

[1-20] RCW 49.60.030(1) INCLUDES RIGHT OF INDEPENDENT CONTRACTOR TO BE FREE OF DISCRIMINATION BASED ON PROTECTED CLASSES (AFFIRMED): In this case, the Court applied general rules of statutory construction and held that “an independent contractor who is discriminated against in the making or performance of a contract for employment because of sex, color, creed, national origin or disability has a cause of action for affirmative relief and for damages under RCW 49.60.030.” Id. at 112-113, 115-16. Accordingly, the Court affirmed the Court of Appeals. Id. at 116.

ISSUE #2: Did the Plaintiff present sufficient evidence to establish a prima facie case of discrimination?

[2-1] MCDONNELL DOUGLAS BURDEN-SHIFTING FRAMEWORK (“MCDONNELL DOUGLAS FRAMEWORK”): UNFAIR PRACTICES AND MAKING OF CONTRACTS: “This court has consistently applied the burden allocation scheme developed by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Xieng, 120 Wash.2d at 519, 844 P.2d 389.” Marquis, 130 Wn.2d at 113. “That scheme of proof is the same whether applied in an employment discrimination case alleging an unfair practice or alleging discrimination in the making of a contract.” Id. (internal citation omitted).

[2-2] ELEMENTS OF THE MCDONNELL DOUGLAS FRAMEWORK: SEX DISCRIMINATION BASED ON DISPARATE TREATMENT:

[2-2a] Step 1 – The Prima Facie Case (Plaintiff’s Burden): “Essentially, under the framework established by McDonnell Douglas, the plaintiff has the initial burden of proving a prima facie case. In any sex discrimination action based on disparate treatment, the plaintiff must demonstrate that she or he was treated differently than persons of the opposite sex who are otherwise similarly situated.” Marquis, 130 Wn.2d at 113 (internal citation omitted).

“Therefore, in an action for discrimination in the making and performance of an employment contract, the plaintiff in a sex discrimination case must show[:]

(1) membership in a protected class;

(2) the plaintiff was similarly situated to members of the opposite sex, i.e., that he or she was qualified for the position applied for or was performing substantially equal work;

(3) because of plaintiff’s sex he or she was treated differently than members of the opposite sex, i.e., that he or she was denied the position, was offered a contract only on terms which made the performance of the job more onerous or less lucrative than contracts given to members of the opposite sex, or, once offered the contract, was treated in a manner that made the performance of the work more difficult than that of members of the opposite sex who were similarly situated.

Id. at 113-14 (internal citations omitted) (paragraph formatting added).

[2-2b] Step 2 – Legitimate Nondiscriminatory Reason (Defendant’s Burden): “Once the plaintiff establishes a prima facie case, an inference of discrimination arises. In order to rebut this inference, the defendant must present evidence that the plaintiff was rejected for the position or was treated differently for a legitimate nondiscriminatory reason.” Id. at 114

[2-2c] Step 3 – Substantial Factor (Plaintiff’s Burden): “At this point, the plaintiff retains the final burden of persuading the trier of fact that discrimination was a substantial factor in the disparate treatment.” Id. (internal citation omitted.

[2-3] DEFENDANT’S ARGUMENT: No prima facie case: “The City argues here that even if an independent contractor has a cause of action under RCW 49.60.030(1), Ms. Marquis has not presented sufficient evidence to establish a prima facie case of discrimination in compensation or constructive discharge.” Id. at 114.

“First, the City argues that, as a matter of law, there can be no discrimination in the making of a contract where the terms of the contract have been offered to all eligible contractors, regardless of sex, race, creed, national origin or disability, after a public solicitation.” Id.

COURT’S RESPONSE: Plaintiff established prima facie case: “[T]the original request for proposals does not affect Ms. Marquis’ claim that she was discriminated against in the negotiations for the renewal of her contract. Ms. Marquis has demonstrated that[:]

(1) she is a member of a protected class;

(2) she was performing substantially similar work as the male golf professionals hired by the City as independent contractors; and

(3) she was treated differently in the negotiation of the renewal of her contract and possibly in the original negotiation of her contract, as well as during the performance of her contract with the City.

Id. at 115 (paragraph formatting added).

[2-4] DEFENDANT’S ARGUMENT: Plaintiff failed to provide rebuttal: “The City claims Ms. Marquis has not rebutted the City’s evidence that the work done by the three professional golfers hired by the City was not substantially equal.” Id. at 115.

COURTS RESPONSE: Plaintiff presented more than conclusory statements, and the difference in jobs is a question for jury: “Ms. Marquis has presented more than conclusory allegations with respect to this element of her case by describing the nature of the three golf courses, the comparative golfing seasons and number of golfers at each course, and describing the job of the golf professionals. Whether the differences in the jobs constitute legitimate nondiscriminatory reasons for the difference in treatment is a question for the jury.” Id.

[2-5] SUMMARY JUDGMENT INAPPROPRIATE: THERE ARE GENERAL ISSUES OF MATERIAL FACT: “The City’s rebuttal of Ms. Marquis’ case creates a genuine issue of material fact exists that makes summary judgment inappropriate. The ultimate burden of proving discrimination is upon Ms. Marquis.” Id.

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July 13, 2021May 26, 2022

Sangster v. Albertson’s Inc., 99 Wn.App. 156 (Div. 3 2000)

This is a case summary of Sangster v. Albertson’s Inc., 99 Wn.App. 156, 991 P.2d 674 (Div. 3 2000). Subjects include, but are not limited to the following:

» SEXUAL HARASSMENT BY SUPERVISOR

» IMPUTING HARASSMENT

» FARAGHER-ELLERTH AFFIRMATIVE DEFENSE

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Sangster v. Albertson's Inc., 99 Wn.App. 156, 991 P.2d 674 (Div. 3 2000) — **Sangster v. Albertson’s Inc., 99 Wn.App. 156, 991 P.2d 674 (Div. 3 2000)**

case summarY – 12 Facts:

[1] In 1989, Brenda Sangster started working in the service deli Department of the Albertson’s store in Lewiston, Idaho.

[2] In December 1992, she was promoted to service deli manager in the Clarkston[, Washington] Albertson’s store.

[3] Approximately two and one-half years later, she resigned her position at the Clarkston store and returned to a nonmanager position at the Lewiston Albertson’s.

[4] During Ms. Sangster’s tenure as deli manager at the Clarkston Albertson’s, the store director was Terry Myers.

[5] Ms. Sangster claims that while she was an employee at the Clarkston Albertson’s store, she was the victim of Mr. Myers’ sexual harassment.

[6] In October 1996, she filed a sexual harassment action against Albertson’s and Mr. Myers.

[7] The type of conduct about which Ms. Sangster complains is summarized as follows:

[A] Ms. Sangster was constantly referred to as “honey,” “sweety,” and “little girl” by Mr. Myers.

[B] Mr. Myers made sexually suggestive and demeaning comments to Ms. Sangster regarding shorts. Regarding this incident, Ms. Sangster asked Mr. Myers if it was possible for the deli department employees to wear shorts at the outdoor Albertson’s store promotions. Mr. Myers told Ms. Sangster that this was okay if she bought or wore a size too small for her.

[C] Ms. Sangster was present at a managers’ meeting concerning Vicki Fuson as employee of the month. At the meeting, Mr. Myers nominated Ms. Fuson as the employee of the month since she looked great in a bathing suit and made a gesture regarding Ms. Fuson’s breasts.

[D] There were numerous statements and comments by Mr. Myers to Ms. Sangster in which he stated to Ms. Sangster, “What’s the matter — didn’t you get any last night?” This particular comment was not limited to one incident but was repeatedly made by Mr. Myers to Ms. Sangster in the presence of co-workers and at the Thursday managers’ meeting in front of other department managers.

[E] On one occasion, a friend dropped a dress off at the store for Ms. Sangster. Mr. Myers, in the presence of other employees, asked Ms. Sangster to try the dress on in front of them.

[F] Mr. Myers made the statement to Ms. Sangster in the service deli department while looking at a display, “Damn that makes my titt[-] hard.”

[G] At one of the managers’ meetings, Mr. Myers made the comment regarding hot mustard, “Try it, it will make your pecke[-] stand out.”

[H] Mr. Myers made a comment regarding Ms. Sangster’s flying lessons. He remarked that she should join his mile high club. When she asked what that was, Mr. Myers turned and walked away laughing. Ms. Sangster felt that this comment was of a sexual nature and carried sexual overtones.

[I] Mr. Myers made comments about the problem with dating younger men. He stated that Ms. Sangster should go out with older men like himself. In this same conversation, Mr. Myers commented to Ms. Sangster that she should travel with him.

[J] Mr. Myers made other vulgar and demeaning sexual comments to Ms. Sangster at the weekly managers’ meetings.

[K] Mr. Myers stated that he noticed Ms. Sangster’s performance as service deli manager began to slip the four to six months Before she left the Clarkston store in July 1995.

[8] Albertson’s and Mr. Myers filed a motion for summary judgment.

[9] The court found that these actions did not rise to the level of sexual harassment and, accordingly, granted Albertson’s and Mr. Myers’ motion for summary judgment.

[10] Ms. Sangster filed a motion for reconsideration pursuant to CR 59 and submitted a new affidavit containing additional information.

[11] The court denied the motion for reconsideration, stating “[t]he new affidavit is an attempt to bring in new evidence[.]”

[12] The court further ruled that “the requirements of CR 59 have not been satisfied.” Ms. Sangster appeals.

Sangster v. Albertson’s Inc., 99 Wn.App. 156, 991 P.2d 674 (Div. 3 2000) (hyperlinks added).

ISSUE #1: Did the trial court err in granting Albertson’s and Mr. Meyers’ motion for summary judgment dismissing plaintiff Sangster’s sexual harassment claim?

[1-1] SEXUAL HARASSMENT GENERALLY: “Washington’s law against discrimination [(WLAD)], RCW 49.60, protects employees from sexual harassment.” Sangster v. Albertson’s Inc., 99 Wn.App. 156, 161, 991 P.2d 674 (Div. 3 2000) (citing Coville v. Cobarc Servs., Inc., 73 Wash.App. 433, 438, 869 P.2d 1103 (1994) (citing Glasgow v. Georgia-Pacific Corp., 103 Wash.2d 401, 405, 693 P.2d 708 (1985))) (hyperlink added).

[1-2] THE WLAD SEXUAL HARASSMENT PROVISION (RCW 49.60.180(3)): “The statute provides in relevant part, ‘[i]t is an unfair practice for any employer … [t]o discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability[.]'” Id. (citing RCW 49.60.180(3)) (alteration in original).

[1-3] TWO TYPES OF SEXUAL HARASSMENT (QUID PRO QUO & HOSTILE WORK ENVIRONMENT): “Sexual harassment claims are characterized as either ‘quid pro quo harassment’ or ‘hostile work environment’ claims.” Id. (citing DeWater v. State, 130 Wash.2d 128, 134, 921 P.2d 1059 (1996) (quoting Payne v. Children’s Home Soc’y of Wash., Inc., 77 Wash.App. 507, 511 n. 2, 892 P.2d 1102 (1995))) (internal quotation marks omitted).

[1-4] HOSTILE WORK ENVIRONMENT BASED ON SEX (THE PRIMA FACIE CASE): “To establish a prima facie case for a hostile work environment claim, the employee must demonstrate that there was[:]

(1) offensive, unwelcome contact that

(2) occurred because of sex or gender,

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

(4) can be imputed to the employer.

Id. (citing Doe v. Department of Transp., 85 Wash.App. 143, 148, 931 P.2d 196 (1997) (citing Glasgow, 103 Wash.2d at 406-07, 693 P.2d 708); Coville, 73 Wash.App. at 438, 869 P.2d 1103)) (paragraph formatting added).

[1-5] HOSTILE WORK ENVIRONMENT — 2ND ELEMENT (OCCURRED BECAUSE OF SEX/GENDER): In the instant case, “[the plaintiff] must prove that she would not have been singled out and caused to suffer the harassment had she been male.” Id. (citing Doe, 85 Wash.App. at 148, 931 P.2d 196). Accordingly, “[t]o defeat a summary judgment motion, [the plaintiff] must produce competent evidence that supports a reasonable inference that [the plaintiff’s] gender was the motivating factor for . . . [the] harassing conduct.” Id. (internal citation omitted).

[1-6] HOSTILE WORK ENVIRONMENT — 3RD ELEMENT (AFFECTED THE TERMS OR CONDITIONS OF EMPLOYMENT): “Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id. at 162.

PERVASIVENESS: “The harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. at 162-63 (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708).

TOTALITY OF THE CIRCUMSTANCES: “Whether the harassment is such that it creates an abusive working environment may be determined by examining the totality of the circumstances.” Id. at 163 (citing Payne, 77 Wash.App. at 515, 892 P.2d 1102 (citing Glasgow, 103 Wash.2d at 406-07, 693 P.2d 708)).

CONSIDERATIONS: “[The court] . . . consider[s] the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.'” Id. (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).

CASUAL, ISOLATED, OR TRIVIAL INCIDENTS NOT ENOUGH: “‘Casual, isolated or trivial’ incidents are not actionable.” Id. (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708; see also Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998) (“isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment’ “)).

[1-7] HOSTILE WORK ENVIRONMENT — 4TH ELEMENT (CAN BE IMPUTED TO EMPLOYER): “[A] coemployee’s sexual harassment can be imputed to an employer if that coemployee is a manager who personally participates in the harassment.” Id. (citing Glasgow, 103 Wash.2d at 407, 693 P.2d 708). “The Glasgow formulation of the elements of sexual harassment is taken from federal cases interpreting Title VII.” Id. at 164 (citing Glasgow, 103 Wash.2d at 406-07, 693 P.2d 708) (hyperlink added).

[1-8] HOSTILE WORK ENVIRONMENT — 4TH ELEMENT (QUALIFIED IMPUTATION BASED UPON SUPERVISOR MISCONDUCT): THE FARAGHER-ELLERTH TEST: “Since Glasgow was decided, several federal cases have held that there should not be automatic imputation where the harasser is a supervisor at the employment site but does not occupy an upper level management position.” Sangster, 99 Wn.App. at 164 (citing Perry v. Harris Chernin, Inc., 126 F.3d 1010 (7th Cir.1997); Torres v. Pisano, 116 F.3d 625 (2nd Cir.1997); Andrade v. Mayfair Mgt., Inc., 88 F.3d 258 (4th Cir.1996)).

“In response to those cases, the United States Supreme Court clarified federal law in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270, 141 L.Ed.2d 633 (1998) and Faragher [v. City of Boca Raton, 524 U.S. 775,] 118 S.Ct. … [2275,] 2292-93[, 2283, 141 L.Ed.2d 662 (1998).]” Sangster, 99 Wn.App. at 164 (emphasis added). Accordingly, “[t]he court established [the] [Faragher-Ellerth] test for determining whether an employer is vicariously liable for a hostile work environment created by a supervisor.” Id. (emphasis added).

THE FARAGHER-ELLERTH TEST: The Faragher-Ellerth test “stated: ‘An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.'” Id. (citing Burlington, 118 S.Ct. at 2261).

THE AFFIRMATIVE DEFENSE: “To prevent this rule from imposing automatic liability and to encourage employers to adopt anti-harassment policies, the court provided employers with an affirmative defense that they could assert to avoid vicarious liability for their supervisor’s misconduct:”

When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see F. Rule Civ. Proc. 8(c).”

Sangster, 99 Wn.App. at 164-65 (emphasis added).

[1-9] FARAGHER-ELLERTH AFFIRMATIVE DEFENSE (THE EMPLOYERS’ AFFIRMATIVE DEFENSE TO SUPERVISOR-BASED VICARIOUS LIABILITY): “The [Faragher-Ellerth affirmative] defense comprises two necessary elements:

(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and

(b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

Id. at 165 (paragraph formatting added).

CAVEAT: This test is only applicable when no tangible employment action is taken by the employer against the employee.

[1-10] SUMMARY: SUPERVISOR-BASED VICARIOUS LIABILITY: “[I]f the harassment is actionable and the harasser has supervisory authority over the victim, the presumption is that the employer is vicariously liable for the harassment.” Id. “This presumption may be overcome only if the alleged harassment has not resulted in a tangible employment action, and then only if the employer can prove both elements of the affirmative defense.” Id.

[1-11] HOSTILE WORK ENVIRONMENT — 1ST ELEMENT (OFFENSIVE & UNWELCOME CONDUCT): In this case, the Court found that “[t]he parties agree[d] that the conduct was offensive and unwelcome.” Id. at 161. Thus, the Plaintiff “fulfill[ed] the first element of [her] prima facie case.” Id.

[1-12] HOSTILE WORK ENVIRONMENT — 2ND ELEMENT (OCCURRED BECAUSE OF SEX/GENDER): Next, the Court initially determined that “[s]everal of the incidents Ms. Sangster lists as sexually harassing do not fulfill this element because they were comments made to a group of both males and females and were not motivated by Ms. Sangster’s sex.” Id. at 162. The Court reasoned:

General comments Mr. Myers made at the managers’ meetings like, ‘[t]ry it, it will make your peck[-] stand out,’ or commenting on how a female employee should be employee of the month because she looked good in a swimming suit were not directed at Ms. Sangster and were not motivated by her gender. Also, the comment, ‘[d]amn that makes my titt[-] hard,’ was heard by several other people and was not specifically directed at Ms. Sangster.

Id. (alterations in original).

However, the Court subsequently found that “[t]he remaining incidents appear to have been motivated by Ms. Sangster’s gender[:]

[A] Mr. Myers suggesting that Ms. Sangster order her shorts one size smaller, or try on a dress in front of him, implies that he wanted to look at her in tight shorts or undressed.

[B] Mr. Myers asking Ms. Sangster, “[w]hat’s the matter – didn’t you get any last night?” or remarking that she should join his mile high club, could have been made to either male or female, but were inappropriate comments about her sex life.

[C] Also, Mr. Myers’ comments that Ms. Sangster should go for older men like himself and she could travel with him implied that he wanted to have a relationship with her.

[D] Mr. Myers’ use of the terms, “honey,” “sweety,” and “little girl” in addressing Ms. Sangster and other female employees was definitely based on gender.

The sexual nature of these incidents supports a reasonable inference that the conduct occurred because she was female.

Id.

[1-13] HOSTILE WORK ENVIRONMENT 3RD ELEMENT (AFFECTED THE TERMS OR CONDITIONS OF EMPLOYMENT): The Court first considered the employer’s arguments:

Albertson’s argues that the alleged sexual harassment was only part of Ms. Sangster’s discontent with her job. Further, Albertson’s minimized the sexual harassment, characterizing it as casual or trivial. Albertson’s maintains that it is not clear that the harassment, without Ms. Sangster’s other problems at the store, was sufficiently pervasive so as to alter the conditions of her employment and create an abusive working environment.

Id. at 163, 991 P.2d 674. However, it dismissed these arguments finding in favor of the Plaintiff concerning the third element:

[T]he evidence is sufficient to create an issue of fact because reasonable persons could reach different conclusions as to whether the harassment altered the conditions of employment. Ms. Sangster has established the third element of her prima facie case.

Id.

[1-14] HOSTILE WORK ENVIRONMENT 4TH ELEMENT (CAN BE IMPUTED TO EMPLOYER): This was the main issue on appeal. The Court initially considered the following facts regarding the fourth element:

[a] “Ms. Sangster’s complaints about sexual harassment cover a period of time exceeding two and one-half years.”

[b] “During that time, Albertson’s had in effect a policy prohibiting sexual harassment. This policy was stated in its employee handbook which Ms. Sangster was required periodically to read. It stated:

Employees who have been led to believe that promotions, increases in wages, continued employment or any terms of employment are conditioned on sexual favors, or who feel that they have been subject to any type of sexually offensive work environment or incidents of retaliation, must immediately contact the hotline number 1-800-841-6371. You need not identify yourself to report improper activities via the hotline.

[c] “This policy was effectuated by the hotline number, periodic distribution of notices to each store employee, and special training sessions for store directors.”

[d] “Ms. Sangster received a notice from Albertson’s informing her that all employees must ‘comply with our policy prohibiting sexual harassment.’ “

[e] “The notice further instructed employees that if they were aware of supervisors or employees who have violated the policy, they “should immediately report such information to our General Office in Boise via our toll-free Hotline number.”

[f] “Ms. Sangster never used the hotline to report the sexual harassment.”

[g] “She did not contact Albertson’s about the sexual harassment until after she announced she was stepping down as the service deli manager at Clarkston.”

[h] “After she contacted Albertson’s, she was interviewed by a member of its senior management. Thereafter, Albertson’s investigated Ms. Sangster’s claims.”

[i] “Although the investigation failed to substantiate her claims, Albertson’s counseled Mr. Myers that no sexual harassment could be tolerated.”

[j] “There is no evidence that Ms. Sangster was subject to any sexual harassment or retaliation after she made her complaint.”

Id. at 165-66.

The Court then found as follows:

In this case, there is evidence that the employer adopted a policy prohibiting sexual harassment. There is also evidence that the employee did not timely report the harassment to her employer as required by its policy. There is a factual basis for the argument that had she done so, the damages to her and the liability to her employer may have been eliminated or limited by its response to her complaints. Nevertheless, under a rule that imputes automatic liability to an employer for the conduct of a manager, Albertson’s would be automatically liable for Mr. Myers’ conduct.

Id. at 166.

[1-15] GLASGOW IS NOT CONTROLLING: The Court then considered whether the Glasgow case was controlling and noted the following:

♦ Glasgow “does not discuss the effect of failure to use an anti-sexual harassment complaint procedure.”

♦ “There is no evidence that the Glasgow employer had such a procedure.”

♦ “[I]n describing the four elements of sexual harassment, the court stated what ‘an employee must prove.”

♦ “It did not attempt to articulate defenses which may have been available to the employer.”

Sangster, 99 Wn.App. at 166-67 (internal citations omitted). Accordingly, the Court concluded that Glasgow was not controlling in the instant case.

[1-16] EVIDENCE SUFFICIENT TO SUSTAIN SEXUAL HARASSMENT CLAIM UNDER RCW 49.60.180 (REVERSED & REMANDED): The Court held as follows:

Viewed in the light most favorable to Ms. Sangster, as the nonmoving party, the evidence was sufficient to sustain a claim of sexual harassment under RCW 49.60.180.

Albertson’s and Mr. Myers should not have been granted summary judgment. There is a genuine issue of material fact as to whether Mr. Myers sexually harassed Ms. Sangster and whether such conduct created a hostile work environment.

If these issues should be resolved against Albertson’s, it would be liable for Mr. Myers’ conduct, unless it prevails on the affirmative defense described in Burlington and Faragher.

Sangster, 99 Wn.App. at 167 (hyperlink and paragraph formatting added). As a result, the Court reversed the trial court decision and remanded for trial.

NOTABLES & IMPLICATIONS:

POLICY BEHIND THE FARAGHER-ELLERTH DEFENSE

(1) POLICY: “In adopting an affirmative defense limiting employer liability, the Burlington court stated it was consistent with ‘Title VII’s purpose to the extent it would encourage the creation and use of anti-harassment policies and grievance procedures.’ ” Sangster, 99 Wn.App. at 166 (citing Burlington, 118 S.Ct. at 2261).

SUMMARY JUDGMENT & WLAD

(2) DEFEATING SUMMARY JUDGMENT: “To defeat summary judgment, the employee must establish specific and material facts to support each element of her prima facie case.” Id. at 160 (citing Marquis, 130 Wash.2d at 105, 922 P.2d 43; Kahn v. Salerno, 90 Wash.App. 110, 117, 951 P.2d 321, review denied, 136 Wash.2d 1016, 966 P.2d 1277 (1998)).

(3) INQUIRY SCOPE: “When reviewing an order of summary judgment, we engage in the same inquiry as the trial court.” Id. at 160 (citing Honey v. Davis, 131 Wash.2d 212, 217, 930 P.2d 908, 937 P.2d 1052 (1997)).

(4) MATERIAL FACT: “A material fact is one upon which the outcome of the litigation depends.” Id. at 160 (citing Greater Harbor 2000 v. City of Seattle, 132 Wash.2d 267, 279, 937 P.2d 1082 (1997)).

(5) STANDARD: “Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. at 160 (citing CR 56(c); Hash v. Children’s Orthopedic Hosp. & Med. Ctr., 110 Wash.2d 912, 915, 757 P.2d 507 (1988)).

(6) STATEMENTS (OPINIONS & CONCLUSORY DECLARATIONS): “[I]n order for a plaintiff alleging discrimination in the workplace to overcome a motion for summary judgment, the worker must do more than express an opinion or make conclusory statements.” Id. at 160 (citing Marquis v. City of Spokane, 130 Wash.2d 97, 105, 922 P.2d 43 (1996)) (internal quotation marks omitted).

(7) THE SUMMARY JUDGMENT ADMONITION: “Summary judgment should rarely be granted in employment discrimination cases.” Id. at 160 (citing Johnson v. Department of Soc. & Health Servs., 80 Wash.App. 212, 226, 907 P.2d 1223 (1996)).

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July 12, 2021May 26, 2022

Cert. From U.S. District Court in Zhu v. North Central ESD 171, 404 P.3d 504 (Wash. 2017)

This is a case summary of Cert. From U.S. District Court in Zhu v. North Central ESD 171, 404 P.3d 504 (Wash. 2017). Subjects include, but are not limited to the following:

» UNLWAFUL RETALIATION

» JOB APPLICANTS

» PROSPECTIVE EMPLOYERS

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**Cert. From U.S. District Court in Zhu v. North Central ESD 171, 404 P.3d 504 (Wash. 2017)**

case summarY – 21 Facts:

[1] Zhu is a United States citizen who emigrated from China in 2004.

[2] Waterville School Disrict no. 209 hired Zhu as a math teacher in 2006.

[3] In 2010, Waterville issued a notice of probable cause for Zhu’s discharge, which he appealed.

[4] The hearing officer determined that there was not probable cause for discharge and restored Zhu to his position.

[5] Zhu then sued Waterville in federal district court, alleging that Waterville had subjected him to racially motivated disparate treatment, a hostile work environment, and retaliation in violation of 42 U.S.C. § § 1983, 2000e-2 and 2000e-3.

[6] His complaint alleged that he filed multiple grievances with Waterville regarding hostile and abusive actions by his students.

[7] Zhu described being called a chink, a communist, and gay by his students; in 2008 Zhu was the subject of a cartoon that depicted a border patrol shooting someone described as a communist chink; and in May, 2009 a student scrawled a hateful racial attack against Zhu on a bathroom wall, saying he hoped Zhu’s new house would burn down.

[8] Zhu alleged that instead of attempting to remedy the situation, Waterville took retaliatory actions against him for filing the grievances, including attempting to discharge him without probable cause.

[9] After the district court denied Waterville’s motion for summary judgment dismissal, the parties settled and Zhu resigned from Waterville in March 2012.

[10] Three months after resigning from Waterville, Zhu applied for a position as a “Math-Science Specialist” with ESD 171.

[11] ESD 171 is an educational service district that provides cooperative and informational services to local school districts, including Waterville . . . and it is undisputed that members of ESD 171’s hiring committee were aware of Zhu’s lawsuit against Waterville.

[12] Zhu was one of three candidates interviewed, but ESD 171 ultimately hired a different candidate, whom Zhu claims was far less qualified for the position.

[13] Zhu sued ESD 171 in federal district court, alleging that it refused to hire him in retaliation for his prior lawsuit against Waterville, thereby violating WLAD’s antiretaliation statute, RCW 49.60.210(1), as well as other state and federal laws.

[14] ESD 171 moved for summary judgment dismissal asserting that Zhu’s WLAD antiretaliation claim should fail for the same reasons that his federal antiretaliation claim should fail.

[15] However, the district court correctly noted that WLAD is not identical to federal law, analyzed the WLAD antiretaliation claim on its merits, and denied summary judgment.

[16] ESD 171 moved to reconsider, arguing that Zhu’s WLAD antiretaliation claim must fail because RCW 49.60.210(1) does not prohibit retaliatory discrimination against job applicants by prospective employers.

[17] The court denied reconsideration.

[18] Following a jury trial, Zhu prevailed on his WLAD antiretaliation claim and was awarded damages.

[19] ESD 171 then filed a motion for judgment as a matter of law or for a new trial, challenging the sufficiency of the evidence and the jury instructions, and asking in the alternative that the district court certify to . . . [the Washington State Supreme Court] the question of RCW 49.60.210(1)’s scope.

[20] [T]he district court granted the motion in part and certified the following question regarding the scope of RCW 49.60.210(1) to . . . [the Washington State Supreme [C]ourt]: “Does RCW 49.60.210(1) create 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?”

[21] The court otherwise denied the motion . . . .

Certification From the United States District Court for the Eastern District of Washington in Zhu v. North Central ESD 171, 404 P.3d 504 (Wash. 2017) (internal citations & quotation marks omitted) (hyperlinks added).

ISSUE #1: Does RCW 49.60.210(1) create 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?

[1-1] GENERALLY

WLAD’S ANTIRETALIATION POLICY: The primary purpose of WLAD’s antiretaliation statute, RCW 49.60.210(1), is “[m]aintaining unfettered access to statutory remedial mechanisms.” Certification From the United States District Court for the Eastern District of Washington in Zhu v. North Central ESD 171, 404 P.3d 504, 508 (Wash. 2017) (citing Robinson v. Shell Oil Co., 519 U.S. 337, 346, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)) (alteration in original). If the court “does not provide . . . [people] some measure of protection against retaliation[,]” then “[people will be less likely to oppose discrimination by bringing claims or testifying. Id. (citing Allison v. Hous. Auth., 118 Wn.2d 79, 94, 821 P.2d 34 (1991)).

WLAD’S ANTIRETALIATION PROVISION: “[I]n order to encourage people to oppose discrimination, RCW 49.60.210(1) provides in full:

It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.

Zhu, 404 P.3d at 508 (citing RCW 49.60.210(1)).

STATUTORY INTERPRETATION IS MATTER OF LAW: The issue of whether 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 is a question of statutory interpretation and therefore a matter of law. See Zhu, 404 P.3d at 508.

WLAD PROVISIONS (LIBERAL CONSTRUCTION): “When interpreting WLAD, we are particularly mindful that ‘a plaintiff bringing a discrimination case in Washington assumes the role of a private attorney general, vindicating a policy of the highest priority.” Id. at 508 (citing Marquis v. City of Spokane, 130 Wn.2d 97, 109, 922 P.2d 43 (1996)). “To further this important purpose, both the legislature and Washington courts require that even in a plain language analysis, WLAD’s provisions must be given liberal construction.” Id. (internal citations and quotation marks omitted).

FUNCTIONALLY SIMILAR TEST: “Washington courts employ the ‘functionally similar’ test to determine whether the defendant had sufficient control over the plaintiff’s employment to be held personally liable for discriminatory actions.” Id. at 510 (citing Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.App. 927, 930, 965 P.2d 1124 (1998) (“coworker without supervisory authority is not personally liable for retaliation”)).

[1-2] DEFINITIONS

WLAD DEFINITION OF EMPLOYER: “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.'” Id. at 508 (citing RCW 49.60.040(11)).

DEFINITION INCLUDES PROSPECTIVE EMPLOYERS: “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.” Id. at 509 (referencing 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)).”

Washington courts have “always treated WLAD references to employers to include prospective employers where appropriate.” Id. at 509-10 (citing Scrivener v. Clark Coll., 181 Wn.2d 439, 334 P.3d 541 (2014)).

WLAD DEFINITION OF PERSON: “WLAD defines a ‘person’ in extremely broad terms to include 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 508 (citing RCW 49.60.040(19)).

WLAD DEFINITION OF DISCRIMINATION: “[W]hile WLAD does not define ‘discrimination,’ it would defy the ordinary meaning of that word to hold that it excludes an employer’s differentiation between people in the hiring process based on an observable characteristic, such as whether or not they have previously filed antidiscrimination lawsuits.” Id. at 508-09.

OPPOSING PRACTICES FORBIDDEN BY WLAD: “D]iscriminating against a person in ‘terms or conditions of employment’ because of race is clearly a practice forbidden by WLAD, and filing a lawsuit for damages based on such discrimination is clearly opposing that practice.” Id. at 509 (citing RCW 49.60.180(3)).

[1-3] STRUCTURE

UNFAIR PRACTICES OF EMPLOYERS (RCW 49.60.180): “RCW 49.60.180 defines practices by employers that are unfair when based on a person’s protected characteristics, including refusing to hire the person, discharging the person, discriminating against the person in the terms and conditions of employment, and inquiring into the person’s protected characteristics in the hiring process.” Zhu, 404 P.3d at 511 (hyperlink added).

UNFAIR PRACTICES OF LABOR UNIONS (RCW 49.60.190): “RCW 49.60.190 defines practices by labor unions that are unfair when based on a person’s protected characteristics, including denying the person membership to the union, expelling the person from the union, and discriminating against the person in the union’s duty of representation.” Zhu, 404 P.3d at 511 (hyperlink added).

UNFAIR PRACTICES OF EMPLOYMENT AGENCIES (RCW 49.60.200): “RCW 49.60.200 defines practices by employment agencies that are unfair when based on a person’s protected characteristics, including refusal to refer the person for employment and inquiring into the person’s protected characteristics in connection with prospective employment.” Zhu, 404 P.3d at 511 (hyperlink added).

WLAD ANTIRETALIATION (RCW 49.60.210): “RCW 49.60.210 provides that it is an unfair practice for any employer, labor union, or employment agency to discriminate against any person for opposing practices forbidden by WLAD.” Zhu, 404 P.3d at 511; WLAD’s Antiretaliation Provision, supra (emphasis added).

[1-4] PURPOSE

GENERALLY: “WLAD’s purpose is plain: the ‘elimination and prevention of discrimination in employment, in credit and insurance transactions, in places of public resort, accommodation, or amusement, and in real property transactions.” Id. at 512 (citing RCW 49.60.010).

RIGHT TO OBTAIN & HOLD EMPLOYMENT: Regarding the instant case, “the right to be free from invidious discrimination includes ‘the right to obtain and hold employment without discrimination.'” Id. (citing RCW 49.60.030(1)(a)).

DISCRIMINATION IN HIRING & EMPLOYMENT: “Such discrimination in hiring and employment based on protected characteristics ‘threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state.'” Id. (citing RCW 49.60.010).

LIBERAL CONSTRUCTION: “The overarching importance of eradicating such discrimination requires that WLAD’s provisions ‘be construed liberally for the accomplishment of the purposes thereof.'” Id. (citing RCW 49.60.020).

ENFORCEMENT BY PRIVATE INDIVIDUALS: “[W]LAD, like other laws prohibiting discrimination based on protected characteristics, relies heavily on private individuals for its enforcement.” Id. (citing Allison v. Hous. Auth., 118 Wn.2d 79, 86, 821 P.2d 34 (1991)).

[1-5] GIVING EFFECT TO THE LEGISLATURE’S INTENT

Prior to the instant case, “[v]ery few opinions by this court have discussed . . . [RCW 49.60.210(1)], and no Washington court has considered whether . . . [that statute] prohibits retaliatory discrimination against job applicants by prospective employers.” Id. at 508 (hyperlink added). The certified question of statutory interpretation is a matter of law. Zhu, 404 P.3d at 508 (citing Allen v. Dameron, 187 Wn.2d 692, 701, 389 P.3d 487 (2017)).

Accordingly, the Court determined both of the following:

(1) “When interpreting WLAD, [WA courts] . . . are particularly mindful that ‘a plaintiff bringing a discrimination case in Washington assumes the role of a private attorney general, vindicating a policy of the highest priority.” Id. (citing Marquis v. City of Spokane, 130 Wn.2d 97, 109, 922 P.2d 43 (1996)).

(2) “To further this important purpose, both the legislature and Washington courts require that even in a plain language analysis, WLAD’s provisions must be given ‘liberal construction.'” Id. (citing Marquis, 130 Wn.2d at 108) (internal citation omitted).

[1-6] “THE ORDINARY MEANING OF THE PLAIN LANGUAGE OF RCW 49.60.210(1) SHOWS THAT THE ANSWER [TO THE CERTIFIED QUESTION] IS YES”

The Court initially examined the relevant statue finding that “[t]he plain language of RCW 49.60.210(1), in and of itself, strongly indicates that the answer to the certified question is yes.” Zhu, 404 P.3d at 508 (hyperlink added). That statute declares that “it is an unfair practice for ‘any employer … [to] discriminate against any person discriminate against any person because he or she has opposed any practices forbidden by this chapter.” Id. (alteration in original).

Thus, “if (1) ESD 171 is an employer, (2) Zhu is a person, (3) refusal to hire is discrimination, and (4) suing for racial discrimination is opposition to practices forbidden by WLAD, then RCW 49.60.210(1) clearly applies to Zhu’s claim.” Zhu, 404 P.3d at 508 (hyperlink added).

In this case, the Court determined that:

(1) “ESD 171 is clearly ‘any employer’ in accordance with [the WLAD definition] … as there is no dispute that it employs eight or more people and is not a religious or sectarian organization[ ]”;

(2) “Zhu is obviously a person[ ]”;

(3) “[W]hen ESD 171 refused to hire Zhu because he had previously sued Waterville for racial discrimination, ESD 171 discriminated against Zhu[ ]”; and

(4) “Therefore, Zhu’s prior lawsuit against Waterville for racial discrimination in the terms and conditions of his employment constituted opposition to a practice forbidden by WLAD.”

Id. at 508-9.

[1-7] “UNDER WLAD, AN ‘EMPLOYER’ IS NOT LIMITED TO PLAINTIFF’S CURRENT EMPLOYER FOR PURPOSES OF RCW 49.60.210(1)”

“ESD 171 argue[d] that RCW 49.60.210(1)’s reference to ‘any employer’ should be read as ‘the plaintiff’s current employer.'” Zhu, 404 P.3d at 509 (hyperlink added). However, the Court rationalized that:

A prospective employer, including ESD 171, easily fits within WLAD’s definition of an ’employer,’ and RCW 49.60.210(1) explicitly applies to ‘any employer.’ There is nothing in the statutory language or context to indicate that RCW 49.60.210(1) does not mean exactly what it says.

Zhu, 404 P.3d at 510 (hyperlinks added).

The Court also reasoned that “as the entity making the hiring decision, ESD 171 had complete control over Zhu’s possible employment, and the ‘functionally similar’ test has no relevance” in this case. Id.

[1-8] “RCW 49.60.210(1) PROHIIBITS ALL FORMS OF DISCRIMINATION BY EMPLOYERS IN THEIR CAPACITY AS EMPLOYERS”

ESDs ARGUMENT: “ESD 171 . . . takes the position that RCW 49.60.210(1) prohibits retaliatory discrimination only in the context of an established employment relationship because the only forms of prohibited retaliation that the statue explicitly mentions are ‘discharg[ing]’ and ‘expel[ling],’ both of which contemplate a preexisting relationship.” Zhu, 404 P.3d at 510 (alteration in original) (hyperlink added).

ESD 171s PROPOSED INTERPRETATION OF RCW 49.60.210(1) IS UNREASONABLE: The Court found that “ESD 171’s proposed interpretation of RCW 49.60.210(1) is an unreasonable application of that general rule.” Zhu, 404 P.3d at 510 (hyperlink added). The Court determined that “[s]ince the time that WLAD was first enacted, it has included the provisions, now codified at RCW 49.60.180 [(Unfair Practices of Employers), RCW 49.60.190 (Unfair Practices of Labor Unions), RCW 49.60.200 (Unfair Practices of Employment Agencies), and RCW 49.60.210 (Antiretaliation Provision)].” Zhu, 404 P.3d at 511 (hyperlinks added).

WLAD PROVISIONS INDICATE DISCRIMINATION UNDER RCW 49.60.210(1) INCLUDES AN EMPLOYER’S REFUSAL TO HIRE: These provisions “have always maintained the same basic form, and they have always been set forth in the same order.” Id. (Comparing RCW 49.60.180-210, with Laws of 1949, ch. 183 § 7(1)-(4)). Accordingly, “[t]his structure strongly suggests that ‘otherwise discriminat[ing]’ for the purposes of RCW 49.60.210(1) must, at a minimum, include the preceding explicitly specified unfair practices, one of which is an employer’s refusal to hire.” Zhu, 404 P.3d at 511 (citing RCW 49.60.180(1), supra) (emphasis added) (hyperlink added).

NO PUBLISHED WA CASE HAS CONSIDERED WHETHER RCW 49.60.210(1) PROHIBITS RETALIATORY DISCRIMINATION IN HIRING: ESD 171 further contended and offered caselaw to support its proposition that “RCW 49.60.210(1) prohibits only an ‘adverse employment’ action or decision that affects the terms or conditions of an established employment relationship.” Zhu, 404 P.3d at 511 (emphasis & hyperlink added). But the Court found that “[n]o published Washington case has ever considered, much less rejected, the question of whether RCW 49.60.210(1) prohibits retaliatory discrimination in hiring.” Zhu, 404 P.3d at 511 (hyperlink added).

As a result, the Court decided that it must therefore “apply the language of the statute, rather than the language of distinguishable cases.” Id. It further refused to extend the holding of Warnek v. ABB Combustion Engineering Services, Inc., 137 Wn.2d 450, 972 P.2d 453 (1999), to the instant case, because Warnek “interpreted materially different statutes and its conclusions were based on ‘the limited facts’ presented.” Zhu, 404 P.3d at 511-12.

“[B]ased on its language, context, and structure, the nonexclusive list of prohibited unfair retaliatory practices in RCW 49.60.210(1) does not indicate a legislative intent to allow retaliatory discrimination in hiring by a prospective employer against a job applicant.” Zhu, 404 P.3d at 512 (hyperlink added).

[1-9] “THE PURPOSES OF WLAD WOULD BE SEVERELY UNDERMINED BY ESD 171’S INTERPRETATION”

The Court found that “[t]he purposes of WLAD would be severely undermined by ESD 171’s interpretation.” Id. It considered plain language interpretation of a WLAD provision within the scope of the “legislature’s express statement of purpose and mandate for liberal construction.” Id. Accordingly, it concluded:

(1) “It is well recognized that WLAD, like other laws prohibiting discrimination based on protected characteristics, relies heavily on private individuals for its enforcement . . . Allison v. Hous. Auth., 118 Wn.2d [79], . . . 86 [(1991); and] . . . [t]his reliance would be unrealistic, to say the least, if this court does not provide them some measure of protection against retaliation[ ]”; and

(2) “[I]t would make little sense to hold that the legislature intentionally undercut its own purposes in enacting WLAD by adopting an antiretaliation provision that allows employers to compile an unofficial ‘do not hire’ list of individuals who have previously opposed discrimination against themselves and others.”

Zhu, 404 P.3d at 512 (internal quotation marks omitted) (hyperlink added).

The Court ultimately found that “RCW 49.60.210(1)’s plain language, read in context, does make retaliatory refusal to hire an unfair practice, and RCW 49.60.030(2) plainly provides that any person who has been subjected to an unfair practice has the right to bring a civil cause of action.” Zhu, 404 P.3d at 513 (emphasis and hyperlinks added).

Accordingly, “Zhu’s claim that ESD 171 refused to hire him in retaliation for his prior opposition to Waterville’s discriminatory practices stated a viable cause of action in accordance with the plain language of WLAD.” Id.

[1-10] RCW 49.60.210(1) PROHIBITS PROSPECTIVE EMPLOYERS FROM ENGAGING IN RETALIATORY DISCRIMINATION AGAINST JOB APPLICANTS: The Court declared that “[i]n accordance with the language, context, and purpose of WLAD, we hold that RCW 49.60.210(1) prohibits prospective employers from engaging in retaliatory discrimination against job applicants.” Zhu, 404 P.3d at 513 (emphasis and hyperlink added).

ISSUE #2: Is Zhu entitled to attorneys fees on review?

[2-1] RAP 18.1(a): “If applicable law grants to a party the right to recover reasonable attorney fees or expenses on review before either the Court of Appeals or Supreme Court, the party must request the fees or expenses as provided in this rule, unless a statute specifies that the request is to be directed to the trial court.” See id. at 513 (citing RAP 18.1(a)).

[2-2] RCW 49.60.030(2): “Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).” See Zhu, 404 P.3d at 513 (citing RCW 49.60.030(2)); RCW 49.60.030(2).

[2-3] ZHU IS THE PREVAILING PARTY: In this case, the Court explicitly determined that Zhu was the prevailing party; and the Court implicitly determined both that RCW 49.60.030(2) was the applicable law granting Zhu the right to recover reasonable attorney fees/expenses and that Zhu properly requested fess/expenses as provided in RAP 18.1 before the WA Supreme Court. See Zhu, 404 P.3d at 513.

[2-4] ZHU IS ENTITLED TO ATTORNEY FEES: “Because Zhu [was] the prevailing party,” the Court granted “his request for reasonable attorney fees on review pursuant to RAP 18.1(a) and RCW 49.60.030(2).” Zhu, 404 P.3d at 513 (hyperlinks added).

NOTABLES & IMPLICATIONS:

STATUTORY CONSTRUCTION

(1) “[D]iscerning a statute’s plain meaning requires . . . [the court] to consult the statute itself, ‘as well as related statutes or other provisions of the same act in which the provision is found.’” Id. at 509 (citing Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 10, 43 P.3d 4 (2002)).

(2) “[S]pecific statutory terms may reasonably inform courts as to the meaning of broader statutory terms.” Id. at 510.

WLAD ANTIRETALIATION PROVISION

(3) “Since its inception in 1949, WLAD has always contained an antiretaliation statute.” Id. at 507-08 (citing Laws of 1949, ch. 183, § 7(4))

(4) “[T]he list of prohibited retaliatory actions in RCW 49.60.210(1) is explicitly not exclusive.” Zhu, 404 P.3d at 510 (hyperlink added).

(5) The antiretaliation provision is not limited to solely employers, employment agencies, and labor unions. “[I]n order to encourage people to oppose discrimination, RCW 49.60.210(1) provides in full:

It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.

Zhu, 404 P.3d at 508 (citing RCW 49.60.210(1)) (emphasis and hyperlink added).

In 1997, “the Court of Appeals . . . held that it is an unfair practices for a credit union to expel a member because he assisted credit union employees in an antidiscrimination lawsuit, persuasively reasoning that a credit union is an ‘other person’ for purposes of RCW 49.60.210(1).” Zhu, 404 P.3d at 510 (citing Galbraith v. TAPCO Credit Union, 88 Wn.App. 939, 951, 946 P.2d 1242 (1997) (internal quotation marks omitted).

(6) The “Court of Appeals has persuasively applied precedent from the Supreme Court of the United States to hold that ‘[a]n employment action is adverse if it is harmful to the point that it would dissuade a reasonable employee from making complaints of sexual harassment or retaliation.'” Id. at 511 (citing Boyd v. State, 187 Wn.App. 1, 15, 349 P.3d 864 (2015) (internal citation omitted) (alteration in original).

(7) “If prospective employers are allowed to engage in retaliatory refusals to hire, a reasonable employee might well be dissuaded from opposing discriminatory practices for fear of being unofficially ‘blacklisted’ by prospective future employers.” Id. at 511.

WLAD GENERALLY

(8) “WLAD ‘create[s] a private cause of action against any employer engaging in an ‘unfair practice.'” Id. at 507 (citing Kumar v. Gate Gormet, Inc., 180 Wn.2d 481, 489, 325 P.3d 193 (2014) (internal citations omitted) (alteration in original).

WLAD POLICY

(9) The primary purpose of WLAD’s antiretaliation statute, RCW 49.60.210(1), is “[m]aintaining unfettered access to statutory remedial mechanisms.” Zhu, 404 P.3d at 508 (citing Robinson v. Shell Oil Co., 519 U.S. 337, 346, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)) (alteration in original).

(10) If the court “does not provide . . . [people] some measure of protection against retaliation[,]” then “[people will be less likely to oppose discrimination by bringing claims or testifying. Id. (citing Allison v. Hous. Auth., 118 Wn.2d 79, 94, 821 P.2d 34 (1991)).

(11) “When interpreting WLAD, [WA courts] . . . are particularly mindful that ‘a plaintiff bringing a discrimination case in Washington assumes the role of a private attorney general, vindicating a policy of the highest priority.” Id. (citing Marquis v. City of Spokane, 130 Wn.2d 97, 109, 922 P.2d 43 (1996)).

“To further this important purpose, both the legislature and Washington courts require that even in a plain language analysis, WLAD’s provisions must be given ‘liberal construction.'” Id. (citing Marquis, 130 Wn.2d at 108) (internal citation omitted).

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July 11, 2021May 26, 2022

Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734 (Div. 2 2013)

This is a case summary of Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734 (Div. 2 2013). Subjects include, but are not limited to, the following:

» DIRECT EVIDENCE TEST

» DISPARATE TREATMENT

» HOSTILE WORK ENVIRONMENT

» UNLAWFUL RETALIATION

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Alonso v. Qwest Communications Company, LLC, 178 Wn.App 734 (Div. 2 2013) — **Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734 (Div. 2 2013)**

case summarY – 5 Facts:

[1] Joseph Alonso sued his employer, Qwest Communications Company LLC, and his supervisor for discrimination [based on his combat veteran, disabled person, and Mexican-American statuses.]

[2] [T]he superior court granted Qwest summary judgment dismissal of Alonso’s complaint.

[3] Alonso appeals, arguing that he provided sufficient evidence to establish prima facie discrimination claims for disparate treatment, hostile work environment, and unlawful retaliation.

[4] [The Court held] that Alonso established prima facie disparate treatment and hostile work environment claims [and reversed] the superior court’s summary judgment dismissal on those matters.

[5] [The Court held] that Alonso failed to establish a prima facie retaliation case … [and affirmed] the superior court’s summary judgment dismissal of that claim.

Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734 (Div. 2 2013).

ISSUE #1: Did Alonso sufficiently establish a prima facie disparate treatment case under the direct evidence test?

[1-1] DISPARATE TREATMENT: Disparate treatment is a form of discrimination that “occurs when an employer treats some people less favorably than others because of race, color, religion, sex, or other protected status.” Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734, 743 (Div. 2 2013) (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 354 n. 7, 172 P.3d 688 (2007)).

“To establish a prima facie disparate treatment discrimination 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)).

[1-2] PRIMA FACIE TEST (2 OPTIONS): “A plaintiff can establish a prima facie case by either[:]

[1.] offering direct evidence of an employer’s discriminatory intent, or …

[2.] satisfying the McDonnell Douglas burden-shifting test that gives rise to an inference of discrimination.

Id. at 743-44 (citing Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1993)) (emphasis and paragraph formatting added).

[1-3] DIRECT EVIDENCE TEST (2 REQUIREMENTS): “[A] plaintiff can establish a prima facie case by providing direct evidence that[:]

(1) the defendant employer acted with a discriminatory motive and

(2) the discriminatory motivation was a significant or substantial factor in an employment decision.

Id. at 744 (citing Kastanis, 122 Wn.2d at 491) (paragraph formatting added).

[1-4] EMPLOYER’S DISCRIMINATORY REMARKS GENERALLY CONSIDERED DIRECT EVIDENCE OF DISCRIMINATION: “We generally consider an employer’s discriminatory remarks to be direct evidence of discrimination.” Id. (referencing Johnson v. Express Rent & Own, Inc., 113 Wn.App. 858, 862-63, 56 P.3d 567 (2002) (“reversing summary judgment based on supervisor’s ageist comments that plaintiff did not fit company’s image of a youthful, fit, ‘GQ’ looking mold” )).

[1-5] SIGNIFICANT OR SUBSTANTIAL FACTOR IN AN EMPLOYMENT DECISION: ADVERSE EMPLOYMENT ACTION: The plaintiff-employee “must next [establish that] … the discriminatory motive was a significant or substantial factor in an employment decision relating to … [plaintiff].” Id. at 746 (referencing Kastanis, 122 Wn.2d at 491).

Adverse Employment Action: “An adverse employment action involves a change in employment conditions that is more than an inconvenience or alteration of one’s job responsibilities, such as reducing an employee’s workload and pay.” Id. (citing Campbell v. State, 129 Wn.App. 10, 22, 118 P.3d 888 (2005), review denied, 157 Wn.2d 1002 (2006)).

Demotion, Adverse Transfer, and Hostile Work Environment: “A demotion or adverse transfer, or a hostile work environment, may also amount to an adverse employment action.” Id. (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 465, 98 P.3d 827 (2004), review denied, 154 Wn.2d 1007 (2005)).

[1-6] ALONSO’S DIRECT EVIDENCE TEST: “To satisfy the direct evidence test, Alonso must show that Qwest acted with discriminatory motive in taking an adverse employment action against him based on his protected status as either a veteran, Mexican-American, or disabled person.” Id. at 744 (internal citations omitted).

[1-7] EVIDENCE OF DISCRIMINATORY MOTIVE (VETERAN STATUS):

In this case:

(a) Alonso recounted that Martinez “stated hatred of disabled combat veterans: ‘I will tell you what I hate[:] people that served in the first Gulf War for five days and claim a disability.’ “

(b) “the record demonstrates that Alonso was the only disabled Gulf War combat veteran at Qwest and that he claimed a 40 percent combat disability stemming from his service.”

(c) “Martinez knew of Alonso’s combat veteran status and, according to Alonso, even ‘stated that he hated the fact that I was receiving disability pay.’ “

Id. at 745 (alteration in original) (internal citations and quotation marks omitted). Accordingly, the Court found that “Martinez openly stated that he hated disabled Gulf War combat veterans and specifically that he hated that Alonso was disabled and receiving disability pay.” Id.

[1-8] EVIDENCE OF DISCRIMINATORY MOTIVE (NATIONAL ORIGIN & SPEECH IMPEDIMENT):

In this case:

(a) “… Alonso produced evidence that Martinez referred to Mexicans as ‘Spics’ and allowed others to use the term[ ]”;

(b) “[e]mployees including Martinez openly mocked Alonso’s speech impediment and accent;”

(d) “contrasted themselves to Alonso because they ‘spoke correct English,’ unlike him.”

Id. (internal citations omitted). “This open mocking based on Alonso’s national origin and speech impediment constitutes further direct evidence of discriminative intent, specifically relating to Alonso’s protected disability and national origin statuses.” Id.

[1-9] SIGNIFICANT OR SUBSTANTIAL FACTOR IN EMPLOYMENT DECISION (EVIDENCE OF ADVERSE EMPLOYMENT ACTION): In this case, Alonso claimed that he suffered adverse action through both adverse transfer and hostile work environment.

Adverse Transfer: Alonso claimed that he experienced an adverse transfer causing him to lose certain benefits including a newer van, cellular phone, and other preferences regarding equipment. Id. at 746.

Due to conflicting evidence, the Court raised and dismissed the rule in O’Neal v. City of Chicago, 392 F.3d 909, 912 (7th Cir. 2004), essentially establishing that loss of benefits do not amount to an adverse employment action when those benefits were associated with the position from which the plaintiff transferred. See id. at 746.

The Court viewed the evidence in a light most favorable to Alonso and held that his “benefits” were not tied to the position from which he transferred, and, thus, a reasonable juror could conclude that he suffered an adverse employment action when he transferred from his original position and was forced to give up those “benefits.” Id. at 747

Hostile Work Environment: Alonso also argued that he experienced adverse action in that he “suffered from a negative employment decision–being subjected to an increasingly hostile work environment as the subject of harassment targeting his protected statuses.” Id. at 747.

The Court considered derogatory comments made by Martinez and other employees, as described above, and it also considered the following additional comments allegedly made by Martinez regarding Alonso’s veteran status and PTSD: “[A]re you crazy or something?” and “[D]id you know Vietnam was over in 1978?” Id. at 748 (internal citations omitted).

“Viewed in a light most favorable to Alonso, the evidence showed … [:]

[a] Martinez and other employees openly bullied and condoned the bullying of Alonso because of his accent stemming from his Mexican-American heritage and speech impediment disability, as well as his disabled veteran status[ ] [;]

[b] [t]he bullying was so pervasive that other employees noticed and sympathized with Alonso;

[c] one co-worker opined that Alonso’s treatment was so bad that ‘[i]t was evident in the way that Ben Martinez treated Joseph Alonso that he did not like him and that he was trying to make Joseph’s working conditions so poor that Joseph would quit.’

Id. (internal citations omitted) (one alteration in original). “Because of the severity of this unbridled bullying and harassment, this hostile work environment amounted to an adverse employment action.” Id.

[1-10] ALONSO ESTABLISHED A PRIMA FACIE DISPARATE TREATMENT CASE UNDER DIRECT EVIDENCE TEST: The Court held that “Alonso sufficiently established a prima facie disparate treatment case under the direct evidence test.” Id.

It further held that “Alonso produced direct evidence of (1) Martinez’s discriminatory motive–his hatred toward Alonso as a disabled Gulf War veteran with a speech impediment and (2) how he suffered adverse employment decisions–loss of his newer van and cell phone, and an increasingly hostile work environment laden with bullying and mockery of his Mexican-American heritage and disabilities.” Id

ISSUE #2: Did Alonso establish a prima facie hostile work environment claim?

[2-1] HOSTILE WORK ENVIRONMENT: “To establish a prima facie hostile work environment claim, the plaintiff must allege facts proving that[:]

(1) the harassment was unwelcome,

(2) the harassment was because the plaintiff was a member of a protected class,

(3) the harassment affected the terms and conditions of employment, and

(4) the harassment is imputable to the employer.

Id. at 749 (citing Loeffelholz v. Univ. of Wash., 175 Wn.2d 264, 275, 285 P.3d 854 (2012)) (paragraph formatting added).

Actionable Harassment: “Harassment is actionable only if it is sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. (citing Antonius v. King County, 153 Wn.2d 256, 261, 103 P.3d 729 (2004)).

[2-2] HARASSMENT BECAUSE OF PROTECTED CLASS (2ND ELEMENT): To establish the 2nd element of a hostile work environment claim–that the harassment was because the plaintiff was a member of a protected class–“a plaintiff need only produce evidence that supports a reasonable inference that his protected class status was the motivating factor for the harassing conduct.” Id. at 749 (internal citations and quotation marks omitted).

[2-3] HARASSMENT AFFECTED TERMS & CONDITIONS (3RD ELEMENT): “To determine whether conduct was severe or pervasive enough to affect the terms and conditions of employment…[courts] look at the totality of the circumstances, including the frequency and severity of harassing conduct, whether it was physically threatening or humiliating, or merely an offensive utterance, and whether it unreasonably interfered with the employee’s work performance.” Id. at 751 (citing Washington v. Boeing Co., 105 Wn.App. 1, 10, 119 P.3d 1041 (2000)).

“Whether offensive comments affect the conditions of employment is a factual question.” Id. (referencing Davis v. W. One Auto. Grp., 140 Wn.App. 449, 457, 166 P.3d 807 (2007), review denied, 163 Wn.2d 1040 (2008)). However, “causal, isolated, or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id. (citing Washington, 105 Wn.App. at 10).

[2-4] HARASSMENT IMPUTABLE TO EMPLOYER (4TH ELEMENT): “Harassment is imputed to an employer when an owner, manager, partner, or corporate officer personally participates in the harassment.” Id. at 754 (citing Glasgow v. Ga.-Pac. Corp., 103 Wn.2d 401, 407, 693 P.2d 708 (1985)). “Managers are those whom the employer has given authority and power to affect the hours, wages, and working conditions of the employer’s workers.” Id. (citing Robel v. Roundup Corp., 148 Wn.2d 35, 48 n. 5, 59 P.3d 611 (2002)).

[2-5] UNWELCOME (1ST ELEMENT): The Court found that it was undisputed between the parties that Alonso did not welcome any hostility or harassment. Id. at 749.

[2-6] HARASSMENT BECAUSE OF PROTECTED CLASS (2ND ELEMENT): The Court considered Alonso’s offered evidence regarding military status (Martinez expressed hatred that Alonso was a disabled Gulf War combat vet and he compared his vet status to Alonso’s); regarding race (Martinez and others subjected Alonso to racially derogatory language (established above)); and regarding disability (he was a victim of open mocking for his speech impediment (established above)). See id. at 749-50.

Accordingly, the court determined that Alonso satisfied this element in establishing a prima facie hostile work environment claim. See id. at 750-51.

[2-7] HARASSMENT AFFECTED TERMS & CONDITIONS (3RD ELEMENT): The Court considered the evidence referenced under element 2 above and also considered that “Alonso visited a psychiatric emergency room in response to the ‘great stress at work’ and an upsurge in PTSD symptoms.” Id. at 752.

The Court held that Alonso “sufficiently demonstrated that the alleged harassment affected the terms and conditions of his employment.” Id.

[2-8] HARASSMENT IMPUTABLE TO EMPLOYER (4TH ELEMENT): Alonso’s supervisor, Martinez, set his crew’s hours, managed how employees were to spend their time on projects, controlled overtime, and controlled placement on out-of-town projects. See id. at 752-53.

Thus, Martinez qualified as a manager for purposes of summary judgment, because he had authority to affect employee’s hours, wages (via delegating overtime) and working conditions. See id. The Court also found that Martinez participated in some of the harassment as described above. Id. at 753.

Alonso established the harassment is imputable to the employer through supervisor Martinez. Id.

[2-9] ALONSO ESTABLISHED A PRIMA FACIE HOSTILE WORK ENVIRONMENT CLAIM (REVERSED): The Court held both that Alonso established a prima facie hostile work environment claim and that the superior court erred in granting Qwest’s summary judgment motion on this issue. Accordingly, the Court reversed the trial court’s dismissal of his hostile work environment claim. Id.

ISSUE #3: Did the superior court err in dismissing Alonso’s retaliation claim?

[3-1] UNLAWFUL RETALIATION: “The WLAD prohibits retaliation against a party asserting a claim based on a perceived violation of his civil rights or participating in an investigation into alleged workplace discrimination.” Id. at 753 (citing RCW 49.60.210).

PRIMA FACIE CASE. “To establish a prima facie retaliation case, a plaintiff must show that[:]

(1) he engaged in statutorily protected activity,

(2) his employer took an adverse employment action against him, and

(3) there is a causal link between the activity and the adverse action.”

Id. at 753-54 (citing Short v. Battle Ground Sch. Dist., 169 Wn.App. 188, 205, 279 P.3d 902 (2012)) (paragraph formatting added).

[3-2] PROTECTED ACTIVITY: “An employee engages in WLAD-protected activity when he opposes employment practices forbidden by antidiscrimination law or other practices that the employee reasonably believed to be discriminatory.” Id. at 754 (citing Short, 169 Wn.App. at 205).

[3-3] COMPLAINTS MUST REFERENCE PLAINTIFF’S PROTECTED STATUS: “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. (referencing Graves v. Dep’t of Game, 76 Wn.App. 705, 712, 887 P.2d 424 (1994)).

[3-4] PROTECTED ACTIVITY (1ST ELEMENT): The Court initially evaluated whether Alonso met the first element of an unlawful retaliation claim — that he participated in protected activity.

Here, Alonso used a company hotline to make a general complaint about corruption, mistreatment, and vulgar language against both his supervisor (Martinez) and another employee. Id. at 754. However, Alonso “did not express that his complaints were in response to harassment based on any protected status.” Id.

Thus, the Court held that Alonso did not establish the first element, because he did not phone the hotline to report discrimination against him based on a protected class. Id.

[3-5] ALONSO FAILED TO ESTABLISH A PRIMA FACIE RETALIATION CASE (TRIAL COURT AFFIRMED): The Court held that Alonso failed to sufficiently establish a prima facie retaliation case, because he did not demonstrate that he engaged in statutorily protected activity. See id. at 754. Therefore, the Court affirmed the trial court’s dismissal of his unlawful retaliation claim. Id. at 754-55.

NOTABLES & IMPLICATIONS:

EMPLOYEE’S ALLEGED HUMILIATION & SELF-DIAGNOSED MENTAL SICKENESS RAISED INFERENCE THAT CONDITION RESULTED FROM HOSTILE WORK ENVIRONMENT

(1) “Whether offensive comments affect the conditions of employment is a factual question.” Id. at 751 (referencing Davis v. W. One Auto. Grp., 140 Wn.App. 449, 457, 166 P.3d 807 (2007) (“holding that employee’s alleged humiliation and self-diagnosed mental sickness from ‘racially charged’ workplace comments raised inference that condition resulted from hostile work environment”), review denied, 163 Wn.2d 1040 (2008)) (emphasis added).

HOSTILE WORK ENVIRONMENT (IMPUTABLE TO EMPLOYER) — ASSIGNING OVERTIME

(3) A supervisor/manager may have authority to affect an employee’s wages if the supervisor/manager had the ability to determine who could earn overtime. See id. at 752 (referencing Robel v. Roundup Corp., 148 Wn.2d 35, 48 n. 5, 59 P.3d 611 (2002)).

HOSTILE WORK ENVIRONMENT: TWO COMMENTS MAY BE ENOUGH TO SUPPORT REASONABLE INFERENCE THAT PROTECTED CLASS STATUS WAS MOTIVATING FACTOR

(4) Just two comments may be enough to support a reasonable inference that an employee’s protected class status was the motivating factor for harassing conduct. See id. at 749-50 (supervisor openly expressed he hated that plaintiff was a disabled Gulf War combat veteran and compared his own veteran status to plaintiff’s).

INDIRECT DEROGATORY RACIALLY CHARGED LANGUAGE MAY BE ACTIONABLE

(5) “[A] defendant need not levy derogatory racially charged language directly at the plaintiff to subject the plaintiff to a hostile work environment and survive summary judgment.” See Davis v. W. One Auto. Grp., 140 Wn.App. 449, 457, 166 P.3d 807 (2007) (defendant’s derogatory statements about Dr. Martin Luther King Jr. and calling African American plaintiff a ” bitch” could be considered racially motivated and subjected plaintiff to hostile work environment), review denied, 163 Wn.2d 1040 (2008)) (emphasis added).

THE O’NEAL RULE

(6) “In O’Neal v. City of Chicago, 392 F.3d 909, 912 (7th Cir. 2004), the Seventh Circuit held that the loss of a plaintiff’s cellular telephone, pager, vehicle, and parking space did not amount to an adverse employment action when those benefits were associated with the position from which the plaintiff was transferred.” Id. at 746. The Court in this case raised and dismissed the O’Neal Rule due to conflicting evidence.

TITLE VII FOR GUIDANCE

(7) “Because our discrimination laws substantially parallel Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e to 2000e-17, [courts] …may look to federal law for guidance.” Id. at 755, n. 10 (citing Phanna K. Xieng v. Peoples Nat’l Bank of Wash., 120 Wn.2d 512, 518, 844 P.2d 389 (1993)).

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July 10, 2021May 26, 2022

Jenkins v. Palmer, 116 Wn.App. 671 (Div. 2 2003)

This is a case summary of Jenkins v. Palmer, 116 Wn.App. 671 (Div. 2 2003). Subjects include:

» HOSTILE WORK ENVIRONMENT

» CO-WORKER LIABILITY

» WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY

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**Jenkins v. Palmer, 116 Wn.App. 671 (Div. 2 2003)**

case summarY – 10 PRIMARY Facts:

[1] [Debra] Palmer and [Prince] Jenkins were co-workers at the Washington Corrections Center (WCC)[.]

[2] Jenkins sued Palmer to recover funds he gave her as part of an investment agreement.

[3] Palmer then filed a counterclaim in which she alleged sexual harassment and discrimination.

[4] Palmer claimed that Jenkins filed his lawsuit in retaliation for her report of his sexually discriminatory behaviors, which she alleged led to the loss of his job.

[5] She described the behaviors as[:]

(1) harassing her by calling her on the phone;

(2) making sexual advances toward her;

(3) telling other co-workers to stay away from her because she was his property;

(4) telling her that associating with other co-workers would make her “nothing but a slut,” and that women should be slapped around and have sense knocked into them;

(5) threatening to kill her with the rifle he kept in his guard tower;

(6) threatening to flatten her car tires;

(7) mentioning that he carried a gun in his car and that he was not afraid to use it on her;

(8) phoning her in her guard tower after she told him that she wanted him to leave her alone;

(9) approaching her in the WCC’s smoking gazebo, and threatening a co-worker who refused to leave; and

(10) calling her house and hanging up.

[6] Palmer alleged that Jenkins’s behavior affected her ability to do her job and that she feared for her safety and suffered great emotional distress.

[7] Jenkins moved for partial summary judgment on Palmer’s counterclaim . . . [wherein] he denied Palmer’s allegations and asserted that he was Palmer’s co-worker, with no supervisory or managerial control over her.

[8] He argued that the WLAD [(Washington Law Against Discrimination, RCW 49.60)] did not cover this situation.

[9] The trial court dismissed Palmer’s counterclaim, characterizing its order as a final judgment under CR 54(b) to allow Palmer to file an immediate appeal.

[10] On appeal, Palmer argues, as she did . . . [in the trial court,] that (1) a co-worker may be held personally liable for violating the WLAD, and (2) Jenkins’s actions also violated public policy against sexual discrimination and retaliation.

Jenkins v. Palmer, 116 Wn.App. 671 (Div. 2 2003) (internal citations omitted) (paragraph formatting and hyperlinks added).

ISSUE #1: Does the Washington Law Against Discrimination apply to the situation where a co-worker, acting on his own behalf, harasses, threatens, or makes sexual advances toward another worker?

[1-1] UNFAIR PRACTICES OF EMPLOYERS: “RCW 49.60.180(3) states that it is an unfair practice for an employer:

To discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person[.]”

Jenkins v. Palmer, 116 Wn.App. 671, 674 (Div. 2 2003) (emphasis and hyperlink added).

[1-2] DEFINITION OF EMPLOYER: “RCW 49.60.040(3) defines ’employer’ to include ‘any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons[.]’ (emphasis added).” Jenkins, 116 Wn.App. at 674 (hyperlink added).

[1-3] MANAGER & SUPERVISOR LIABILITY: “The [court in] Brown [v. Scott Paper Worldwide Co., 143 Wash.2d 349, 20 P.3d 921 (2001),] held that managers and supervisors may be personally liable under the WLAD when acting in their employer’s interest.” Jenkins, 116 Wn.App. at 675 (citing Brown, 143 Wash.2d at 358).

The court’s “holding is based on the express text of RCW 49.60.040(3), specifically the broad definition of ’employer’ as including any ‘person acting in the interest of an employer.‘” Jenkins, 116 Wn.App. at 675 (citing Brown, 143 Wash.2d at 357-58) (internal citations and quotation marks omitted) (emphasis in original) (hyperlink added).

[1-4] UNFAIR PRACTICE TO AID VIOLATION: RCW 49.60.220 “provides that:

It is an unfair practice for any person to aid, abet, encourage, or incite the commission of any unfair practice, or to attempt to obstruct or prevent any other person from complying with the provisions of this chapter or any order issued thereunder.

Jenkins, 116 Wn.App. at 675 (hyperlink added). RCW 49.60.220, although broad, focuses on conduct that encourages others to violate the WLAD. Jenkins, 116 Wn.App. at 675.

“The references to ‘aid, abet, encourage, or incite’ and to ‘prevent any other person from complying’ show that the statute applies only where the actor is attempting to or has involved a third person in conduct that would violate the WLAD.” Id. at 675-76 (citing RCW 49.60.220) (hyperlink added).

[1-5] UNFAIR PRACTICE (RETALIATION): RCW 49.60.210 “provides:

(1) It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified or assisted in any proceeding….

Jenkins, 116 Wn.App. at 676.

[1-6] BROWN v. SCOTT PAPER WORLDWIDE CO: In this case, “Palmer contends that under Brown v. Scott Paper Worldwide Co., 143 Wash.2d 349, 20 P.3d 921 (2001), co-workers may be personally liable even when not acting in a supervisory capacity.” Jenkins, 116 Wn.App. at 675.

However, “[t]he Brown court held that managers and supervisors may be personally liable under the WLAD when acting in their employer’s interest.” Id. (citing Brown, 143 Wash.2d 349, 358, 20 P.3d 921) (emphasis added). Co-workers were not included as a category in the holding.

The Brown court based its holding “on the express text of RCW 49.60.040(3), specifically the broad definition of ’employer’ as including any ‘person acting in the interest of an employer.'” Jenkins, 116 Wn.App. at 675 (citing Brown, 143 Wash.2d at 357-58, 20 P.3d 921)) (internal citations and quotations marks omitted) (emphasis in original)).

Thus, the Court concluded that “[b]ecause Palmer does not contend that Jenkins was acting in the interest of WCC or that his conduct was anything other than personal, she has not shown Jenkins’s liability under the statute.” Id.

[1-7] UNFAIR PRACTICE TO AID VIOLATION (RCW 49.60.220): Here, the Court considered Palmer’s claim pursuant to RCW 49.60.220, and it found as follows:

RCW 49.60.220, although broad, focuses on conduct that encourages others to violate the WLAD. The references to ‘aid, abet, encourage, or incite’ and to ‘prevent any other person from complying’ show that the statute applies only where the actor is attempting to or has involved a third person in conduct that would violate the WLAD.

Jenkins, 116 Wn.App. at 675-76 (citing RCW 49.60.220) (hyperlink added).

Accordingly, there was “no basis to read RCW 49.60.220 as covering acts of harassment committed by a co-worker acting alone.” Jenkins, 116 Wn.App. at 676 (emphasis and hyperlink added).

[1-8] UNLAWFUL RETALIATION (RCW 49.60.210): In the instant case, Palmer “argued for the first time for application of RCW 49.60.210.” Jenkins, 116 Wn.App. at 676 (hyperlink added). But the Court did not address this contention, because, “Palmer has not argued this theory in her brief or provided any support for treating the filing of a non-frivolous lawsuit for monies owing as an act of discrimination under the WLAD.” Id. (citing RAP 2.5).

The Court also raised and dismissed any attempt to analogize the instant case to the application of RCW 49.60.210 in Galbraith v. TAPCO Credit Union, 88 Wash.App. 939, 946 P.2d 1242 (1997). Jenkins, 116 Wn.App. at 676.

[1-9] GALBRAITH V. TAPCO CREDIT UNION: In Galbraith, “[t]he defendant was a credit union that had terminated the plaintiff’s membership because the plaintiff had supported the credit union’s employees in their legal action against the credit union for a WLAD violation.” Id. However, although TAPCO Credit Union presented as a non-employer, the Court did not consider that case to be analogous to Jenkins; “[t]he specific facts … [in Galbraith] fit within the statutory language.” Id.

The Galbriath court ultimately “held that the credit union fit the definition of an ‘other person’ who had discriminated against Galbraith, and Galbraith fit the definition of ‘any person,’ because of his opposition to discriminatory practices prohibited by the WLAD.” Jenkins, 116 Wn.App. at 676 (citing Galbraith, 88 Wash.App. at 948-51, 946 P.2d 1242).

[1-10] WLAD DOES NOT APPLY TO SITUATION WHERE CO-WORKER, ACTING ON HIS OWN BEHALF, HARASSES, THREATENS, OR MAKES SEXUAL ADVANCES: The Court affirmed the trial court’s ruling that the Washington Law Against Discrimination “does not apply to the situation where a co worker, acting on his own behalf, harasses, threatens, or makes sexual advances toward another worker . . . even when liberally construed to effectuate its broad purposes.” Id. at 673.
.

ISSUE #2: Did Jenkins (a co-worker) violate public policy against sexual discrimination and retaliation?

[2-1] IMPLIED CAUSE OF ACTION: “In Bennett, the employer did not employ more than eight people, a requirement for coverage under the WLAD.” Id. at 677 (citing Bennett v. Hardy, 113 Wash.2d 912, 915, 784 P.2d 1258 (1990)).

“Seeking a remedy for a clear violation of public policy, the Bennett court found an implied cause of action under RCW 49.44.090 against an employer who discriminated on the basis of age discrimination.” Jenkins, 116 Wn.App. at 677 (citing Bennet, 113 Wash.2d at 921) (hyperlink added).

[2-2] WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY: “[A] plaintiff who is dismissed for engaging in conduct protected by public policy may bring a claim against her employer for wrongful discharge in violation of public policy.” Id. (citing Gardner v. Loomis Armored, Inc., 128 Wash.2d 931, 941, 913 P.2d 377, 382 (1996)).

[2-3] IMPLIED CAUSE OF ACTION: “Citing Bennett v. Hardy … Palmer claim[ed] that Jenkins’s conduct violated the public policy against retaliation.” Id. But the court determined that “[u]nlike Bennett, Palmer has not shown that Jenkins’s conduct violated a specific statutory prohibition.” Id.

[2-4] WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY: Palmer suggested “that Jenkins committed the common law tort of retaliation and wrongful discharge in violation of public policy.” Id. However, the Court reasoned that “Palmer … [did] not allege that WCC terminated her or that Jenkins was her employer.” Id

[2-5] POLICY AGAINST SEXUAL DISCRIMINATION AND RETALIATION DOES NOT APPLY (AFFIRMED): The Court found “no basis to create a new common law cause of action; and the theory of wrongful termination in violation of public policy “does not apply.” Id. Accordingly, it affirmed the trial court’s decision.

NOTABLES & IMPLICATIONS:

HOSTILE WORK ENVIRONMENT

(1) The Court in this case seems to imply that a co-worker may be held liable for harassment in violation of the Washington Law Against Discrimination if that co-worker was acting in the interests of the employer when the alleged unlawful harassment occurred. See id. at 674.

IMPLIED CAUES OF ACTION

(2) An implied cause of action may be asserted against defendant employers that escape the reach of the Washington Law Against Discrimination.

The case of Bennett v. Hardy, 113 Wash.2d 912, 784 P.2d 1258 (1990), involved a defendant employer with less than eight employees thereby making the Washington Law Against Discrimination inapplicable. The Court in this case explained that “the Bennett court found an implied cause of action under RCW 49.44.090 against an employer who discriminated on the basis of age discrimination.” Jenkins, 116 Wn.App. at 677 (citing Bennett, 113 Wash.2d at 921) (hyperlink added). However, “[u]nlike Bennett, Palmer has not shown that Jenkins’s conduct violated a specific statutory prohibition.” Id.

Thus, [the Court found] … no basis to create a new common law cause of action in this case.” Id.

PERSONAL LIABILTY: MANAGERS & SUPERVISORS

(3) The court in Brown v. Scott Paper Worldwide Co., 143 Wash.2d 349, 20 P.3d 921 (2001), “found that managers and supervisors may be personally liable under the WLAD when acting in their employer’s interest.” Jenkins, 116 Wn.App. at 675.
.

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July 9, 2021May 26, 2022

Loeffelholz v. University of Washington, 175 Wn.2d 264 (Wash. 2012)

This is a case summary of Loeffelholz v. University of Washington, 175 Wn.2d 264 (Wash. 2012). Subjects include, but are not limited to the following:

» HOSTILE WORK ENVIRONMENT

» TERMS AND CONDITIONS OF EMPLOYMENT

» ADMISSIBLE EVIDENCE OUTSIDE STATUTE OF LIMITATIONS

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**Loeffelholz v. University of Washington, 175 Wn.2d 264 (Wash. 2012)**

case summarY – 7 PRIMARY Facts:

[1] In 2006, the legislature amended the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, to include sexual orientation as a protected class.

[2] After the Amendment, [the Plaintiff] Debra Loeffelholz sued the University of Washington and her superior, James Lukehart (collectively ‘University’), for discrimination based on sexual orientation.

[3] [Loeffelholz] alleges the sexual-orientation-based discrimination created a hostile work environment based on a series of preamendment acts and one potentially postamendment act.

[4] The final allegedly discriminatory act–and the only act to potentially occur postamendment–occurred during Lukehart’s last group meeting before deploying to Iraq. During this meeting, he told the group that he was ‘going to come back a very angry man’ from Iraq.

[5] [The Court held] that the WLAD amendment is not retroactive and that the preamendment conduct is not actionable as it was not unlawful when it occurred.

[6] The postamendment, allegedly discriminatory comment is arguably similar enough to the preamendment conduct to survive summary judgment.

[7] [The Court] affirms the Court of Appeals only in reversing summary judgment for the University and clarify that the Court of Appeals erred in allowing recovery for preamendment conduct.

Loeffelholz v. University of Washington, 175 Wn.2d 264 (Wash. 2012) (hyperlink added).

ISSUE #1: Does the WLAD amendment apply retroactively and, if not, is preamendment discriminatory conduct actionable?

[1-1] STATUTORY CONSTRUCTION (PRESUMPTION OF PROSPECTIVE APPLICATION): The Court “presumes that a statute applies prospectively, unless (1) the legislature intends otherwise, or (2) unless the amendment is remedial in nature.” Loeffelholz v. University of Washington, 175 Wn.2d 264, 271 (Wash. 2012) (internal citations and quotation marks omitted).

The Court may determine if “the legislature intends otherwise” by looking to legislative history. Id. (internal citations omitted). Moreover, “a statute is not remedial when it creates a new right of action.” Id. (internal citations omitted).

[1-2] PLAIN LANGUAGE: The Court found that the plain language of the WLAD amendment at issue did not explicitly state that it applied retroactively; it therefore concluded that the plain language supported prospective application. Id. at 72 (internal citations omitted).

[1-3] LEGISLATIVE HISTORY: The Court found that the final bill report to the WLAD amendment supported prospective application. It stated that “the amendment expanded the WLAD to prohibit discrimination based on a person’s sexual orientation.” Id. (internal citations omitted). The “language implies that before the amendment, WLAD did not protect against discrimination based on sexual orientation.” Id.

[1-4] THE MORGAN TWO-PART INQUIRY INAPPLICABLE: The Court found the Morgan Two-Part Inquiry inapplicable to this case.

In Antonius v. King County, 153 Wn.2d 256, 264, 103 P.3d 729 (2004), the court approved the two-part inquiry (hereinafter “Inquiry”) introduced in Nat’l R.R. Passenger Corp v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)), for purposes of deciding if a hostile work environment claim is timely. Loeffelholz, 175 Wn.2d at 273 (internal citations omitted).

Under the Inquiry, the court is to determine (1) “whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so,” (2) “whether any act falls within the statutory time period.” Id. (internal citations omitted).

However, here, the Court distinguished Antonius from the instant case, pointing out that “recovery for actions outside the statute of limitations does not raise the same due process concerns as does recovery for conduct that was not unlawful when committed.” Id.

[1-5] PREAMENDMENT CONDUCT AS BACKGROUND EVIDENCE: The Court found that “while preamendment conduct is unrecoverable, it is still admissible as background evidence to prove why postamendment conduct is discriminatory.” Id. at 273-74 (internal citations omitted).

The court in Graves v. District of Columbia, 843 F.Supp.2d 106 (D.D.C.2012), “recognize[d] that conduct that is non-actionable for purposes of liability may sometimes be used for a particular purpose in support of actionable claims.” Id. at 274 (internal citations omitted) (alteration in original.

As an example, the Court explained that “earlier conduct may be relevant to prove the intent behind post-effective-date conduct.” Id. (internal citations omitted).

[1-6] TOTALITY-OF-THE-CIRCUMSTANCES ANALYSIS: Here, the Court examined the “totality of the circumstances” and found that Ms. Loeffelholz could use “the preamendment conduct to explain why the ‘angry man’ comment constituted sexual orientation based harassment.” Id.

[1-7] LEGISLATURE’S MANDATE THAT WLAD PROVISIONS BE CONSTRUED LIBERALLY: The Court further concluded that their finding was “supported by the legislature’s mandate that WLAD provisions be construed liberally … to prevent discrimination that threatens not only the rights and proper privileges of the State’s inhabitants but menaces the institutions and foundation of a free democratic state.” Id. (internal citations omitted).

[1-8] WLAD AMENDMENT APPLIES PROSPECTIVELY ONLY BUT HOSTILE WORK ENVIRONMENT CLAIM MAKES PREAMENDMENT CONDUCT ADMISSIBLE: The Court held that based on the plain language and legislative history, the Washington Law Against Discrimination amendment applies prospectively only; it is not retroactive.

However, “because of the unique nature of a hostile work environment claim, the unrecoverable preamendment conduct is admissible as background evidence to give context to any postamendment discriminatory conduct.” Id. at 278.

ISSUE #2: Is a single comment made postamendment a discriminatory act?

[2-1] HOSTILE WORK ENVIRONMENT: To establish a prima facie hostile work environment claim, the plaintiff must allege facts proving that “(1) the harassment was unwelcome, (2) the harassment was because [plaintiff was a member of a protected class], (3) the harassment affected the terms and conditions of employment, and (4) the harassment is imputable to the employer.” Id. at 275 (internal citations and quotation marks omitted) (alteration in original).

[2-2] TERMS & CONDITIONS OF EMPLOYMENT: The third element is met “if the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment, to be determined with regard to the totality of the circumstances.” Id. (internal citations and quotation marks omitted) (emphasis added).

[2-3] TOTALITY OF THE CIRCUMSTANCES: The Court considered the totality of the circumstances, including the preamendment conduct, and concluded that “the ‘angry man’ comment establishes a prima facie hostile work environment claim.” Id. at 275-76.

“The standard for linking discriminatory acts together in the hostile work environment context is not high.” Id. “The acts must have some relationship to each other to constitute part of the same hostile work environment claim.” Id. (internal citations omitted).

In this case, Mr. Lukehart made the “angry man” comment to a group, but “he conceivably intended it to have special meaning for Ms. Loeffelholz.” Id. at 276. Ms. Loeffelholz “knew that Lukehart disliked lesbians and that he had anger management problems as illustrated by his previous comments that he had a volatile temper and kept a gun.” Id.

The Court concluded that “taken in the context of such comments, a reasonable juror could infer from these events that the “angry man” comment was a natural extension of the conduct that made up the preamendment oppressive work environment.” Id. at 276-77.

[2-4] A SINGLE COMMENT MAY BE ENOUGH: The Court found that “the preamendment conduct establishes that the ‘angry man’ comment could be severe enough, on its own, to alter the conditions of employment and establish a hostile work environment.” Id. at 277.

[2-5] A SINGLE COMMENT MADE POSTAMENDMENT CAN ESTABLISH A HOSTILE WORK ENVIRONMENT: The Court found that preamendment conduct establishes that one comment–the “angry man” comment in this case–“could be severe enough, on its own, to alter the conditions of employment and establish a hostile work environment.” Id. at 278.

Thus, assuming the “‘angry man’ comment was made postamendment, a genuine issue of material fact exists that prevents summary judgment.” Id. Accordingly, the Court affirmed “only the Court of Appeals reversal of summary judgment, and reversed its reasoning, which allowed recovery for preamendment conduct.” Id.

NOTABLES & IMPLICATIONS:

HOSTILE WORK ENVIRONMENT

(1) “The standard for linking discriminatory acts together in the hostile work environment context is not high[ ]; [t]he acts must have some relationship to each other to constitute part of the same hostile work environment claim.” Id. at 276 (internal citations omitted).

(2) While preamendment conduct is unrecoverable, it is still admissible as background evidence to prove why postamendment conduct is discriminatory.” Id. at 273-74 (internal citations omitted).

Thus, it appears that comments occurring outside of the statute of limitations in other hostile work environment cases might be analogized to preamendment conduct in this case.

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July 9, 2021May 26, 2022

Nearing v. Golden State Foods Corporation, 114 Wn.2d 817 (Wash. 1990)

This is a case summary of Nearing v. Golden State Foods Corporation, 114 Wn.2d 817, 792 P.2d 500 (Wash. 1990). Primary subjects include, but are not limited to the following:

» WA STATE STATUTORY REQUIREMENTS FOR TOLLING OF THE PERIOD OF LIMITATIONS

» WA STATE COURT RULES FOR COMMENCEMENT OF ACTIONS

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**Nearing v. Golden State Foods Corporation, 114 Wn.2d 817 (Wash. 1990)**

CASE SUMMARY – 11 Facts:

[1] [On] October 23, 1982, [defendant Golden State Foods Corporation (Golden State)] . . . terminated [plaintiff Nearing.]

[2] [O]n October 18, 1985, . . . Nearing commenced an action against Golden State Foods Corporation.

[3] [On that date], Nearing served a summons, but not a complaint, on Golden State . . . shortly before the statute of limitations would have run on his cause of action.

[4] [The] summons . . . stated that the cause of action was based on a breach of contract.

[5] Thereafter Nearing changed counsel.

[6] [O]n January 16, 1986, within 90 days of the service of the summons, Nearing filed a new summons together with a complaint.

[7] [On January 31, 1986, Nearing] served [a] . . . new summons and complaint . . . on Golden State.

[8] Golden State moved to dismiss the action on the grounds that it was time barred by the 3-year statute of limitations because Nearing initially failed to serve a complaint with the summons.

[9] The trial court held that Nearing’s October 18, 1985 service of the summons alone was ineffective under Civil Rules 3 and 4 to toll the statute of limitations. The trial court, therefore, granted Golden State’s motion to dismiss.

[10] The Court of Appeals reversed, holding that CR 3 and 4 did not supersede RCW 4.16.170 and that RCW 4.16.170 controlled.

[11] The Court did not decide whether Nearing complied with the court rules concerning the commencement of actions, but only whether he complied with the statutory requirements for tolling the statute of limitations.

Nearing v. Golden State Foods Corporation, 114 Wn.2d 817, 792 P.2d 500 (Wash. 1990) (internal citations omitted) (hyperlinks added).

ISSUE #1: “The issue is whether the statute of limitations is tolled by service of a summons upon the defendant when the summons is not served with an accompanying complaint.” Id. at 819.

[1-1] TOLLING THE STATUTE OF LIMITATIONS (RCW 4.16.170): “For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first.” Nearing v. Golden State Foods Corporation, 114 Wn.2d 817, 820, 792 P.2d 500 (Wash. 1990) (Wash. 1990).

Accordingly:

[1] If service has not been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served personally, or commence service by publication within ninety days from the date of filing the complaint.

[2] If the action is commenced by service on one or more of the defendants or by publication, the plaintiff shall file the summons and complaint within ninety days from the date of service.

[3] If following service, the complaint is not so filed, or following filing, service is not so made, the action shall be deemed to not have been commenced for purposes of tolling the statute of limitations.

Id.

“Thus, an action is tentatively commenced by service of a summons or the filing of a complaint and the statute of limitations is tolled pending filing of the summons and complaint within 90 days from the date of service.” Id. (emphasis added).

“Either of these acts will toll the statute of limitations as long as the summons and complaint are filed within 90 days.” Id. (citing RCW 4.16.170; Sterling v. County of Spokane, 31 Wash.App. 467, 471, 642 P.2d 1255 (1982)).

“The statutory provision which governs the tolling of the statute of limitations and the court rule governing the commencement of actions are reconcilable.” Id. at 820 (emphasis added).

[1-2] THE STATUTE GOVERNING TOLLING OF THE STATUTE OF LIMITATIONS (RCW 4.16.170): “The statute, RCW 4.16.170, deals exclusively with tolling of the statute of limitations and requires a plaintiff to either file a complaint or serve the summons upon the defendant.” Nearing, 114 Wn.2d at 820 (emphasis and hyperlink added).

[1-3] THE COURT RULE GOVERNING COMMENCEMENT OF ACTIONS (CR 3): “The court rule, CR 3 requires service of the summons and complaint or filing a complaint in order to commence a civil action.” Nearing, 114 Wn.2d at 820-21 (emphasis and hyperlink added).

[1-4] COMPLIANCE WITH 90-DAY RULE UNDER RCW 4.16.170 AUTOMATICALLY RESULTS IN COMMENCEMENT OF AN ACTION UNDER CR 3(a): “Pursuant to CR 3(a), an action is commenced either by service of a copy of a summons together with a copy of a complaint … or by filing a complaint.” Nearing, 114 Wn.2d at 822 (internal quotation marks omitted) (hyperlink added).

“Thus, compliance with the 90 day rule, contained in RCW 4.16.170, automatically results in the commencement of an action under CR 3(a)[;] . . . [t]he statute is consistent with the court rule.” Nearing, 114 Wn.2d at 822 (hyperlinks added).

[1-5] ACTION ON JANUARY 30, 1986 IRRELEVANT TO VALIDITY OF COMPLIANCE WITH RCW 4.16.170: In this case, the Court determined that “plaintiff caused a summons to be served on Golden State October 18, 1985.” Id. at 822. And “[o]n January 16, 1986, within the 90 days mandated by RCW 4.16.170, the plaintiff filed both a summons and complaint.” Nearing, 114 Wn.2d at 822 (emphasis and hyperlink added).

“On January 30, 1986, Nearing served a second summons and complaint on Golden State. The action on January 30, 1986 is irrelevant to the validity of the compliance with RCW 4.16.170.” Nearing, 114 Wn.2d at 822 (hyperlink added).

[1-6] CAUSE OF ACTION VALIDLY COMMENCED TOLLING STATUTE OF LIMITATIONS (AFFIRMED / ORDER OF DISMISSAL VACATED / REMANDED): The Court found that “[t]he January 16 actions of Nearing [(i.e., filing both summons and complaint)] validly ‘commenced’ the plaintiff’s cause of action for the purpose of tolling the statute of limitations.” Id. at 823 (emphasis added). Accordingly, the Court held that “[t]he Court of Appeals is affirmed[,] . . . [t]he order of dismissal is vacated[,] and the cause is remanded for further proceedings.” Id.

[1-7] NOTE REGARDING TOLLING VERSUS COMMENCEMENT OF ACTIONS: “The [C]ourt [of Appeals] did not decide whether Nearing complied with the court rules concerning the commencement of actions, but only [whether he complied with the statutory requirements for tolling the statute of limitations.” Id. at 819 (citing Nearing v. Golden State Foods Corp., 52 Wash.App. 748, 764 P.2d 242 (1988)) (emphasis added).

NOTABLES & IMPLICATIONS:

THE DISSENT (JUSTICE DORE)

(1) (DISSENT) NEARING DID NOT TOLL THE STATUTE OF LIMITATIONS: In this case, the dissent (Justice Dore) asserted that “[t]he trial court should be affirmed” based on the following:

Nearing did not toll the statute of limitations for the subject case. He totally failed to file the summons that was served on Golden on October 18, 1985.

Further, the record does not support the majority’s contention that any summons was filed within 90 days of service as required by RCW 4.16.170.

Since no summons was filed within 90 days of service, the statute was not tolled on October 18, 1985. The action was not commenced until January 16, 1986, when the complaint was filed. Nearing knew he was discharged by December of 1982, as he drew unemployment benefits during that month.

Therefore, he missed the 3-year statute of limitations by at least 10 days or by as much as 3 months if he was terminated in October 1982.

Id. at 827 (hyperlink and paragraphs added).

(2) (DISSENT) SUMMONS FILED NOT SUBSTANTIALLY THE SAME AS SUMMONS SERVED: The dissent argued, inter alia, “[t]he majority ignores the fact that RCW 4.16.170 with its reference to ‘the’ summons and not ‘a’ summons requires that the summons filed be the same as the summons served.” Id. at 826 (see Dowell Company v. Gagnon, 36 Wash.App. 775, 776, 677 P.2d 783 (1984) (” ‘[T]he complaint’ is the one filed in the action … not a complaint independently filed.”)) (emphasis and hyperlink added).

Moreover, “[t]he Court of Appeals . . . suggests that there is compliance with the statute if the two summonses are substantially identical.” Id. at 826 (citing Nearing v. Golden State Foods Corp., 52 Wash.App. 748, 752, 764 P.2d 242 (1988), review granted, 112 Wash.2d 1009 (1989)).

In this case, dissent argues the initial summons served was not substantially the same as the summons filed; “[t]he two summonses are clearly different in this case.” Id. at 826.

“Each summons was signed by a different attorney, and each directed that the defense be served on a different attorney.” Id. at 826-27. “The ‘new summons’ referred to ‘Breach of Contract’.” Id. at 827. “It is not clear what the first summons referred to, since the first summons is not in the record.” Id. at 827.

Thus, “[e]ven if the ‘new summons’ was filed on January 16, 1986, with the complaint, the statute was not tolled as of October 18, 1985.” Id. at 826.

CONFLICT OF LAWS

(3) COURT RULE IS SUPREME: “Whenever there is a conflict between a procedural statute and a court rule, the court’s rule making power is supreme. ” Id. at 821 (citing Petrarca v. Halligan, 83 Wash.2d 773, 776, 522 P.2d 827 (1974)).

(4) HARMONIZING: “Apparent conflicts between a court rule and a statutory provision should be harmonized, and both given effect if possible.” Id. at 821 (citing Emwright v. King Cy., 96 Wash.2d 538, 543, 637 P.2d 656 (1981)).

(5) CR 81(b) (DISSENT FOOTNOTE): “CR 81(b) states: ‘Subject to provisions of section (a) of this rule, these rules supersede all procedural statutes and other rules that may be in conflict.'” Id. at 827, fn. 1 (hyperlink added) (emphasis added).

NOTE: However, as explained above, the majority found that “[t]he statutory provision which governs the tolling of the statute of limitations and the court rule governing the commencement of actions are reconcilable.” Id. at 820 (emphasis added).

LEGISLATIVE HISTORY

(6) “Our conclusion that RCW 4.16.170 stands alone as the rule for tolling the statute of limitations is bolstered by the Twenty-Sixth Annual Report of the Judicial Council.” Id. at 822. “The Council commented on amendments to CR 3 by stating ‘[b]oth the existing rule and the proposed amended rule defer to statutory law governing the tolling of the statute of limitations.’ ” Id. at 822 (citing Washington State Judicial Council, Twenty-Sixth Annual Report 28 (1977)) (alteration in original) (hyperlink added).

STATE STATUTE VS. COURT RULE (TOLLING VS. COMMENCEMENT, RESPECTIVELY)

(7) “[T]he statute controls the tolling of the period of limitations while the rule governs the commencement of actions.” Id. at 821. “Thus it is possible to turn to the statute standing alone to ascertain that the period of limitations has not run and to the rule to ascertain whether the action has been commenced.” Id.

STATUTORY CONSTRUCTION

(8) “When the statutory language is plain and unambiguous, its meaning must be derived from the wording of the statute itself.” Id. at 822 (citing State v. Johnson, 104 Wash.2d 179, 181, 703 P.2d 1052 (1985)).

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July 8, 2021May 26, 2022

Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.App. 927 (Div. 1 1998)

This is a case summary of Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.App. 927 (Div. 1, 1998). Primary subjects include, but are not limited to the following:

» UNLAWFUL RETALIATION

» CO-WORKER LIABILITY

» PRINCIPLES OF STATUTORY CONSTRUCTION

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**Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.App. 927 (Div. 1 1998)**

CASE SUMMARY – 14 Facts:

[1] Alaska Trawl Fisheries, Inc. (ATF) owned the fishing vessel F/T ENDURANCE, a factory trawler.

[2] ATF employed Anthony Malo and Bart Campbell to alternate as captains.

[3] Early in 1992, Malo twice confronted Campbell about complaints that Campbell was behaving improperly towards some of the female crew members.

[4] Campbell denied any improper behavior and became antagonistic towards Malo.

[5] Malo reported the complaints and his confrontation with Campbell to Bill Howell, who was ATF’s president at that time.

[6] On October 27, 1993, Craig Cross became the new president of ATF, replacing Howell.

[7] A few days later, Cross went to Dutch Harbor to see the F/T ENDURANCE. While there, Cross met with Campbell, who was the captain on board, and other officers and crew members.

[8] According to Malo, Cross told him that he had chosen to retain Campbell as the sole captain because he preferred not to have a bifurcation of the crew and because Campbell was more acceptable to ATF’s owners.

[9] Malo then told Cross about the sexual harassment allegations other crew members had made against Campbell.

[10] According to Malo, Cross appeared to have no prior knowledge of these allegations.

[11] He later sued Cross, ATF, Campbell and Campbell’s company, Campbell Fisheries, Inc. (CFI).

[12] Malo brought a retaliatory discharge claim against Campbell, the co-captain, under Washington’s Law Against Discrimination, RCW 49.60.

[13] The trial court dismissed it on the ground that Campbell was not Malo’s employer and therefore was not subject to liability under RCW 49.60.210(1).

[14] Malo appeals contending that the statute unambiguously controls the conduct of any “person” even if that person is not an employer.

Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.App. 927 (Div. 1, 1998) (internal citations omitted) (hyperlink added).

ISSUE #1: Is a co-worker subject to suit under RCW 49.60.210(1)?

[1-1] WLAD ANTI-RETALIATION PROVISION: “RCW 49.60.210(1) provides:

Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.App. 927, 930 (Div. 1, 1998) (citing RCW 49.60.210(1)) (emphasis and hyperlink added).

[1-2] PRINCIPLE OF STATUTORY CONSTRUCTION–GENERAL TERMS: “A general term used at the end of a sequence in a statute is restricted in its application by the preceding words.” Id.

[1-3] PRINCIPLE OF STATUTORY CONSTRUCTION–CONTEXT: “Provisions in a statute are to be read in the context of the statute as a whole.” Id. (citing Pope v. University of Washington, 121 Wash.2d 479, 489, 852 P.2d 1055 (1993)).

[1-4] PRINCIPLE OF STATUTORY CONSTRUCTION–THE EJUSDEM GENERIS RULE: “The ejusdem generis rule requires that general terms appearing in a statute in connection with specific terms are to be given meaning and effect only to the extent that the general terms suggest items similar to those designated by the specific terms.” Id.

[1-5] WLAD ANTI-RETALIATION PROVISION & THE PRINCIPLES OF STATUTORY CONSTRUCTION: In this case, the Court applied the principles of statutory construction to RCW 49.60.210(1) and held “that the general term ‘or other person’ is restricted by the words ’employer,’ ’employment agency’ and ‘labor union.'” Id. at 930 (citing RCW 49.60.210(1)) (emphasis and hyperlink added).

The Court reasoned that “[t]he section, read as a whole, is directed at entities functionally similar to employers who discriminate by engaging in conduct similar to discharging or expelling a person who has opposed practices forbidden by RCW 49.60.” Id. (hyperlink added).

The Court then determined as follows:

[1] Campbell did not employ, manage or supervise Malo.

[2] [Campbell] … was not in a position to discharge Malo or to expel him from membership in any organization[ ]”; the Court noted that this was in contrast to the case in “Galbraith v. Tapco Credit Union, 88 Wash.App. 939, 946 P.2d 1242 (1997), review denied, 135 Wash.2d 1006, 959 P.2d 125 (1998) (liability under RCW 49.60.210 extends to credit unions who discriminate against credit union members engaged in protected activities).

Malo, 92 Wn.App. at 930 (emphasis, paragraphs, and hyperlink added).

[1-6] RCW 49.60.210 DOES NOT CREATE PERSONAL AND INDIVIDUAL LIABILITY FOR COWORKERS (AFFIRMED): The Court concluded that “[b]ecause RCW 49.60.210 does not create personal and individual liability for co-workers, the trial court did not err in dismissing Malo’s claim against Campbell under that statute.” Malo, 92 Wn.App. at 930-31 (hyperlink added).

Accordingly, the Court affirmed the trial court’s ruling and held that “Campbell was not subject to suit under RCW 49.60.210(1) because he was Malo’s co-worker.” Malo, 92 Wn.App. at 928.

NOTABLES & IMPLICATIONS:

PRINCIPLES OF STATUTORY CONSTRUCTION

(1) CONTEXT: “Provisions in a statute are to be read in the context of the statute as a whole.” Id. at 930 (citing Pope v. University of Washington, 121 Wash.2d 479, 489, 852 P.2d 1055 (1993)).

(2) EJUSDEM GENERIS RULE: “The ejusdem generis rule requires that general terms appearing in a statute in connection with specific terms are to be given meaning and effect only to the extent that the general terms suggest items similar to those designated by the specific terms.” Id.

(3) GENERAL TERMS: “A general term used at the end of a sequence in a statute is restricted in its application by the preceding words.” Id.

THE WLAD ANTI-RETALIATION PROVISIONS: RCW 49.60.210

(4) CO-WORKER LIABILITY: RCW 49.60.210 does not create personal and individual liability for co-workers. See id. at 931.

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July 8, 2021May 26, 2022

Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979)

This is a case summary of Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979). Primary subjects include, but are not limited to the following:

» PROTECTED CLASSES (PERCEIVED DISABILITY)

» TERMINATION BASED UPON PERCEIVED (NONEXISTENT) DISABILITY

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**Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979)**

CASE SUMMARY – 11 Facts:

[1] Barnes was hired by WNGC in the early part of 1975 as a ‘helper’ on the natural gas line.

[2] He alleges that after approximately one month’s employment at WNGC his employment was terminated because of an erroneous belief on WNGC’s part that he suffered from epilepsy.

[3] Barnes contends that he does not now, nor did he ever have, epilepsy.

[4] He alleges that his termination by WNGC was based upon a perceived but nonexistent handicap in violation of RCW 49.60.180.

[5] After filing its answer and affirmative defenses, a motion for judgment on the pleadings was made by WNGC.

[6] The trial court entered judgment dismissing the action, holding: (1) That those portions of RCW 49.60 which seek to prohibit discrimination on the basis of ‘any sensory, mental, or physical handicap’ are unconstitutionally vague and, therefore, void and alternatively, (2) That plaintiff is without standing to bring and action against defendant pursuant to the provisions of RCW 49.60.

[7] After the determination by the trial court, the Supreme Court in Chicago, Milwaukee, St. Paul & P.Ry v. Human Rights Comm’n, 87 Wash.2d 802, 557 P.2d 307 (1976), held that provision of the Act pertinent here not unconstitutionally vague.

[8] The unconstitutionality of the statute is not argued by WNGC, except [the Court is] … urged to reverse the ruling that the statute is not unconstitutionally vague for the reasons stated in the respondent Milwaukee R.R.’s brief in that case.

[9] The Court refused the invitation.

[10] The Court held that the [Washington State Human Rights Commission] regulation WAC 162.22.040(1)(b)(iii) [currently WAC 162-22-020] is within the scope of the [Washington Law Against Discrimination], and Barnes has standing to maintain this action.

[11] The Court reversed and remanded to the trial court for further proceedings consistent with this opinion.

Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979) (internal citations omitted) (hyperlink added).

ISSUE #1: Under the WLAD, may a plaintiff have standing to sue their employer for disability discrimination when based on perceived disability?

[1-1] UNFAIR PRACTICES OF EMPLOYERS: RCW 49.60.180 declares, in part, that it is an unfair practice for any employer “to discharge or bar any person from employment because of … the presence of any sensory, mental, or physical handicap.” Barnes v. Washington Natural Gas Co., 22 Wn.App. 576, 578 (Div. I 1979).

[1-2] WASHINGTON ADMINISTRATIVE CODE: “The Washington State Human Rights Commission (The Commission) … has adopted regulation WAC 162-22-040 [(currently WAC 162-22-020)] as follows:

(1) For the purpose of determining whether an unfair practice under RCW 49.60.180-.190, or -.200 has occurred:

(a) A condition is a ‘sensory, mental or physical handicap’ if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question, or was denied equal pay for equal work, or was discriminated against in other terms and conditions of employment, or was denied equal treatment in other areas covered by the statutes. In other words, for enforcement purposes a person will be considered to be Handicapped by a sensory, mental or physical condition if he or she is Discriminated against because of the condition and the condition is abnormal. (emphasis in original.)

(b) ‘The presence of a sensory, mental, or physical handicap’ includes, but is not limited to, circumstances where a sensory, mental, or physical condition:

(i) is medically recognizable or diagnosable;

(ii) exists as a record of history; or

(iii) is perceived to exist, whether or not it exists in fact.

(2) An example of subsection (1)(b)(ii) is a record showing that the worker had a heart attack five years ago. An example of subsection (1)(b)(iii) is a rejection of a person for employment because he had a florid face and the employer thought that he had high blood pressure.”

Id. at 579 (hyperlinks added).

“The Commission … had been granted broad discretion and responsibility for administration of the Act. We must rely upon and give weight to the Commission’s interpretations of the statute reflected in its regulations.” Id. at 581.

[1-3] JUDICIAL REVIEW OF REGULATIONS: “There is a presumption that the regulation is valid, and the burden of challenging it is upon the party attacking it.” Id. at 580 (referencing Weyerhaeuser Co. v. Department of Ecology, 86 Wash.2d 310, 314, 545 P.2d 5 (1976)).

The Court’s “review in such situations generally is limited to determining whether the regulation is reasonably consistent with the statute it purports to implement.” Id. (citing Weyerhaeuser Co., 86 Wn.2d at 314).

[1-4] LEGISLATIVE INTENT: The Court initially considered legislative intent to resolve the issue presented and reasoned, “It is the intent of the legislature to prohibit discrimination in employment against a person with a sensory handicap.” Id. at 582.

But “it would be an anomalous situation if discrimination in employment would be prohibited against those who possess the handicap but would not include within the class a person ‘perceived’ by the employer to have the handicap.” Id.

[1-5] ESSENCE OF EMPLOYMENT DISCRIMINATION: The Court then defined the essence of unlawful employment discrimination as “the application of unreasonable generalizations about people to the hiring, promotion and discharge of workers.” Id.

It considered the history of disability as a protected class, finding, “race, religious creed and sex are among the prohibited criteria for judging workers’ qualifications because of the prejudgments often made on the basis of these characteristics.” Id.

The Court explained that proscriptions of discrimination against handicapped persons were added to WLAD in 1973 on account of “similar prejudgments often made about persons afflicted with sensory, mental or physical handicaps, such as epilepsy.” Id.

[1-6] LEGISLATIVE PURPOSE: The Court also evaluated legislative purpose by first declaring that a person “who is perceived to be afflicted with epilepsy may be discriminated against because of his or her perceived handicap even though that perception turns out to be false in either case.” Id

The Court reasoned that “it would defeat legislative purpose to limit the handicap provisions of the law against discrimination to those who are actually afflicted with a handicap, such as epilepsy, and exclude from its provision those perceived as having such condition.” Id.

The Court went on to declare that “prejudice in the sense of a judgment or opinion formed before the facts are known is the fountainhead of discrimination engulfing medical disabilities which prove on examination to be unrelated to job performance or to be nonexistent.” Id. It determined that the intent of the law is to “protect workers against such prejudgment based upon insufficient information.”

The Court then found that “the law’s application, therefore, should not be limited to those who actually have handicaps, excluding those who are discriminated against in the same way because they are only thought to have handicaps.” Id.

[1-7] PROTECTED CLASS: Next, the Court essentially provided a broad definition of disability as a protected class: “The class protected by the statute is those persons whom the employer discharges or intends to discharge because he believes the person is afflicted with a ‘mental, sensory, or physical handicap.'” Id. at 583 (emphasis added). This definition apparently includes both actual and perceived mental, sensory, or physical handicaps.

[1-8] APPLICATION OF POLICY: The Court applied public policy to the instant case and found that WLAD’s policy to “eliminate and prevent discrimination in employment requires protecting from discriminatory practices both those perceived to be handicapped as well as those who are handicapped.” Id.

[1-9] EMPLOYER’S INTERESTS: Before reaching its holding, the Court also considered the employer’s interests reasoning that the employer was fully protected, because [WLAD] provides “that the prohibition against discrimination because of such handicaps shall not apply if the particular disability prevents the proper performance of the particular worker involved.” Id. (citing RCW 49.60.180(1)).

[1-10] BARNES HAS STANDING BASED ON PERCEIVED DISABILITY (REVERSED & REMANDED): The Court held that Barnes had standing to maintain his action of disability discrimination under WLAD based on perceived disability; and it reversed and remanded the cause to the trial court for further proceedings consistent with its opinion.

ISSUE #2: Is WAC 162-22-040(1)(b)(iii) valid?

[2-1] PRESUMPTION OF VALIDITY: There is a presumption that the regulation is valid, and the burden of challenging it is upon the party attacking it. Id. at 580 (internal citation omitted). The Court’s review in such situation generally is limited to determining whether the regulation is reasonably consistent with the statute it purports to implement. Id. (internal citation omitted).

The Washington State Human Rights Commission has been granted broad discretion and responsibility for administration of the WLAD. Id. at 581. The Court must rely upon and give weight to the Commission’s interpretations of the statute reflected in its regulations. Id. (internal citation omitted).

[2-2] SEE ANALYSIS UNDER ISSUE #1, ABOVE.

[2-3] REGULATION IS WITHIN SCOPE OF WLAD (REVERSED & REMANDED): The Court held that the Washington State Human Rights Commission regulation WAC 162.22.040(1)(b)(iii) was within the scope of the Washington Law Against Discrimination, and it reversed and remanded the cause to the trial court for further proceedings consistent with its opinion.

NOTABLES & IMPLICATIONS:

PUBLIC POLICY

(1) “Public policy, expressed by the [Washington Law Against Discrimination] to eliminate and prevent discrimination in employment requires protecting from discriminatory practices both those perceived to be handicapped as well as those who are handicapped.” Id. at 583.

WASHINGTON STATE HUMAN RIGHTS COMMISSION

(2) “The Washington State Human Rights Commission (referred to as the Board in the Act) is the agency established by the Washington State Law Against Discrimination (the Act) ‘with powers with respect to elimination and prevention of discrimination in employment … because of … the presence of any sensory, mental, or physical handicap; and the (commission) established hereunder is hereby given general jurisdiction and power for such purposes.’ RCW 49.60.010.” Id. at 583, n. 2 (hyperlinks added).

“The regulations have been adopted by the Commission to implement its powers to administer the Act pursuant to RCW 49.60.120: ‘The (commission) shall have the functions, power, and duties: … (3) To adopt, promulgate, amend, and rescind suitable rules and regulations to carry out the provisions of this chapter, and the policies and practices of the (commission) in connection therewith.'” Id. (hyperlink added).

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July 7, 2021May 26, 2022

Cornwell v. Microsoft Corporation, 430 P.3d 229 (Wash. 2018)

This is a case summary of Cornwell v. Microsoft Corporation, 430 P.3d 229 (Wash. 2018). Subjects include:

» UNLAWFUL RETALIATION

» CAUSATION

» THREE ASSOCIATED EVALUATION STANDARDS:

(1) “Actual Knowledge” Standard;

(2) “Knew or Suspected” Standard, and

(3) “General Corporate Knowledge” Standard.

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**Cornwell v. Microsoft Corporation, 430 P.3d 229 (Wash. 2018)**

CASE SUMMARY – 20 Facts:

[1] While working for Microsoft, Cornwell believed that her then-supervisor was discriminating against her on the basis of sex, engaging in romantic favoritism, and taking retaliatory action against her.

[2] She hired an attorney and settled the case with Microsoft.

[3] The settlement was confidential, and Cornwell was no longer required to work under her then-manager, … Parsons.

[4] Seven years later, Cornwell’s new manager, … Blake, asked Cornwell to mentor under another Microsoft employee.

[5] After learning that the employee reported to Parsons, Cornwell told Blake that she could not mentor under the employee.

[6] Blake asked Cornwell why, and Cornwell responded that it was because she had filed a “lawsuit” against Microsoft and could not report to Parsons.

[7] Cornwell also told Blake that the suit involved a review score issue and was confidential.

[8] Blake sought more information about the lawsuit from human resources and her direct supervisor, McKinley.

[9] Human resources did not have any information on file about the lawsuit and promised to follow up on the issue.

[10] Cornwell informed Blake that she was unable to discuss the lawsuit further because of the confidentiality agreement and expressed dissatisfaction that Blake had contacted human resources about the matter.

[11] Shortly after Cornwell told her about the suit, Blake conducted a mandatory performance review of Cornwell.

[12] During that year, Cornwell had received positive reviews from her peers[ ][.]

[13] During her previous years working for Microsoft, Cornwell also had received good performance ratings and promotions.

[14] Despite this positive employment history, Blake informed Cornwell that she was trending toward a rating of “4,” the second lowest possible score.

[15] Ultimately, Blake and McKinley recommended that Cornwell be rated “5,” the lowest possible score.

[16] Other managers disagreed with the rating, believing that Cornwell was a higher performer.

[17] Despite these disagreements, McKinley said that she and Blake would “take the conversation ‘off-line,’ ” meaning that Blake and McKinley would make the final decision about Cornwell’s performance rating without the involvement of the other managers.

[18] Cornwell’s final performance rating was assessed as a “5”— the lowest possible score.

[19] Cornwell was then laid off as part of a larger reduction in force.

[20] [C]ornwell did not learn about her low score until several years later when she was told that she could not be rehired at Microsoft because her final performance rating was so poor.

Cornwell v. Microsoft Corporation, 430 P.3d 229, 232-33 (Wash. 2018) (internal citations omitted).

procedural HISTORY – 8 facts:

[21] Based on these events, Cornwell filed suit against Microsoft, alleging retaliation in violation of WLAD [(i.e., Washington Law Against Discrimination)].

[22] The trial court granted Microsoft’s motion for summary judgment because the judge believed that “there isn’t evidence that Ms. Blake, who gave [Cornwell] the bad [review] score, knew that there was a complaint under WLAD.”

[23] As a result, the judge believed that Cornwell had failed to show a causal link between the adverse employment action taken against her and her prior lawsuit against Microsoft.

[24] Cornwell appealed the trial court’s ruling to the Court of Appeals.

[25] The Court of Appeals affirmed the grant of summary judgment in an unpublished opinion.

[26] But it declined to address whether Cornwell’s prior lawsuit was “protected activity” under WLAD.

[27] The court also declined to adopt Cornwell’s proposed standards of review for the claim.

[28] Cornwell appealed the Court of Appeals’ adverse decision to … [the Washington State Supreme Court], and … [it] accepted review of all issues.

Cornwell v. Microsoft Corporation, 430 P.3d 229, 233 (Wash. 2018) (internal citations omitted).

ISSUE #1: Did plaintiff Cornwell present “enough evidence to show that her supervisors had sufficient knowledge that she had taken a protected action under the Washington Law Against Discrimination (WLAD), RCW 49.60.030?” Id. at 232.

[1-1] STANDARD OF REVIEW: “[The Court] … review[s] a trial court’s grant of summary judgment de novo.” Cornwell v. Microsoft Corporation, 430 P.3d 229, 233 (Wash. 2018) (citing Scrivener v. Clark Coll., 181 Wn.2d 439, 444, 334 P.3d 541 (2014)).

“Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Id. (internal quotation marks omitted).

“[The Court] must also consider all facts and make all reasonable factual inferences in the light most favorable to the nonmoving party.” Id. at 234 (citing Scrivener, 181 Wn.2d at 444, 334 P.3d 541) (internal quotation marks omitted).

“[B]ecause of the difficulty of proving a discriminatory motivation … [s]ummary judgment for an employer is seldom appropriate in the employment discrimination context[.]” Id. at 233-34 (internal citations and quotation marks omitted) (alteration in original).

[1-2] RETALIATION UNDER WLAD: “WLAD proscribes discrimination in employment on the basis of sex, race, sexual orientation, and other protected characteristics.” Id. at 234 (citing RCW 49.60.030).

“WLAD also prohibits employers from retaliating against employees who oppose discriminatory practices.” Id. (citing RCW 49.60.210(1)).

“To further these purposes, the legislature has directed … [the courts] to liberally construe the provisions of WLAD.” Id. (citing RCW 49.60.020).

[1-3] THE MCDONNELL DOUGLAS BURDEN-SHIFTING FRAMEWORK: “When evaluating the merits of cases brought under WLAD, … [the courts] employ the McDonnell Douglas ‘evidentiary burden-shifting’ framework.” Id. at 234 (citing Mikkelsen v. Public Utility District, 189 Wn.2d 516, 526, 404 P.3d 464 (2017)) (internal footnote and associated citation omitted).

“This framework involves three steps, but … [the court] is concerned with only the first step in this case — the plaintiff’s burden to establish a prima facie case of discrimination.” Id. (citing Scrivener, 181 Wn.2d at 446, 334 P.3d 541).

“Ordinarily the prima facie case must, in the nature of things, be shown by circumstantial evidence, since the employer is not apt to announce retaliation as his motive.” Id. (internal citations and quotation marks omitted).

[1-4] THE PRIMA FACIE CASE OF RETALIATION: “To establish a prima facie case of retaliation, an employee must show three things: (1) the employee took a statutorily protected action, (2) the employee suffered an adverse employment action, and (3) a causal link between the employee’s protected activity and the adverse employment action.” Id. at 234 (citing Currier v. Northland Servs., Inc., 182 Wn.App. 733, 742, 332 P.3d 1006 (2014); see also Wilmot v. Kaiser Alum. & Chem. Corp, 118 Wn.2d 46, 68, 821 P.2d 18 (1991) (“establishing the retaliation test in the worker’s compensation context”)) (emphasis added).

[1-5] THE COURT ONLY CONSIDERED THE 3RD ELEMENT (CAUSATION): “Microsoft alleges that Cornwell has failed to produce sufficient evidence for the first and third elements of her prima facie case.” Id. at 234. However, the Court elected to consider only the third element–causation–as follows:

Because the Court of Appeals declined to address whether Cornwell’s lawsuit against Microsoft was a protected activity, and because the parties did not brief the issue to us, we do not reach that issue on appeal. We instead address only whether Cornwell presented sufficient evidence to show a potential causal link between her performance rating score, her termination, and her prior lawsuit.

Id. at 234-35 (emphasis added).

[1-6] PROVING CAUSATION: “An employee proves causation ‘by showing that retaliation was a substantial factor motivating the adverse employment decision.’ ” Id. at 235 (citing Allison v. Hous. Auth., 118 Wn.2d 79, 96, 821 P.2d 34 (1991)) (emphasis added).

CIRCUMSTANTIAL EVIDENCE — PROXIMITY IN TIME: “That an employer’s actions were caused by an employee’s engagement in protected activities may be inferred from proximity in time between the protected action and the allegedly retaliatory employment decision.” Id. at 236 (referencing Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir. 2003) (internal citations and quotation marks omitted).

CIRCUMSTANTIAL EVIDENCE — CHANGE IN PERFORMANCE RATINGS: Circumstantial evidence that an employee experienced an abrupt downward change in performance reviews can support a reasonable inference of causation. See id. at 236-37.

[1-7] CAUSATION & THE PLAINTIFF’S BURDEN OF PRODUCTION AT SUMMARY JUDGMENT: “At the summary judgment stage, the plaintiff’s burden is one of production, not persuasion.” Id. at 235 (citing Scrivener, 181 Wn.2d at 445, 334 P.3d 541).

“Thus, to avoid summary judgment on causation, the employee must show only that a reasonable jury could find that retaliation was a substantial factor in the adverse employment decision.” Id. (internal citation omitted).

“Employees may rely on the following facts to show this: (1) the employee took a protected action, (2) the employer had knowledge of the action, and (3) the employee was subjected to an adverse employment action.” Id. (citing Wilmot, 118 Wn.2d at 69, 821 P.2d 18) (emphasis added). In this case, the 2nd element (i.e., the employer had knowledge of the action) was at issue.

[1-8] THE 3 STANDARDS OF CAUSATION: The Court considered three standards of causation: the “actual knowledge” standard; the “knew or suspected” standard; and the “general corporate knowledge” standard.

[1-8a] CAUSATION — “ACTUAL KNOWLEDGE” STANDARD: “Both the Court of Appeals and several federal courts require that the employer have actual knowledge of the employee’s protected action in order to prove causation.” Id. at 235 (internal citations omitted).

POLICY (ACTUAL KNOWLEDGE): “Because retaliation is an intentional act, an employer cannot retaliate against an employee for an action of which the employer is unaware.” Id. at 235-36.

ACTUAL KNOWLEDGE OF “LEGAL SIGNIFICANCE” NOT REQUIRED (ACTUAL KNOWLEDGE): But “[a] decision-maker need not have actual knowledge about the legal significance of a protected action.” Id. at 236 (emphasis added).

ACTUAL KNOWLEDGE THAT EMPLOYEE TOOK THE ACTION IS REQUIRED (ACTUAL KNOWLEDGE): “Instead, the decision-maker need have actual knowledge only that the employee took the action in order to prove a causal connection.” Id. (internal citations omitted) (emphasis added).

SURVIVING SUMMARY JUDGMENT (ACTUAL KNOWLEDGE): “The proper inquiry is whether the … evidence suggests a causal connection between the protected activity and the subsequent adverse action sufficient to defeat summary judgment.” Id. (internal citation omitted) (alteration in original).

[1.8b] CAUSATION — “KNEW OR SUSPECTED” STANDARD: “The ‘knew or suspected’ standard incorporates the ‘actual knowledge’ standard and also encompasses cases in which the employer suspects that an employee engaged in protected action.” Id. at 237 (trailing footnote omitted) (emphasis added).

PROTECTED ACTION & THE CASUSAL CONNECTION (KNEW OR SUSPECTED): This standard “[r]equires sufficient evidence to reasonably infer ‘both that [a supervisor] either knew or suspected’ that an employee took a protected action ‘and that there was a causal connection between this knowledge or suspicion and [the employee’s] termination.’ ” Id. (citing Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1113 (9th Cir. 2003)) (alteration in original).

EXAMPLE BASED ON MERE SUSPICION (KNEW OR SUSPECTED): “This standard applies, for example, when a supervisor has actual knowledge that a complaint was made but has only a suspicion regarding who made the complaint and subsequently takes an adverse employment action based on that suspicion.” Id.

SURVIVING SUMMARY JUDGMENT (KNEW OR SUSPECTED): “So long as an employee produces evidence from which a reasonable jury could infer that retaliation had taken place, this is sufficient to survive summary judgment.” Id. (citing Hernandez at 1114). “And while, a jury could believe the supervisor’s version of events rather than the employee’s, the jury must be permitted to consider and weigh evidence.” Id. (citing Hernandez at 1114).

[1-8c] CAUSATION — “GENERAL CORPORATE KNOWLEDGE” STANDARD: “Under this standard, the jury can still find retaliation in circumstances where the particular decision-maker denies actual knowledge of the plaintiff’s protected activities, ‘so long as … the jury concludes that an agent is acting explicitly or implicit[ly] upon the orders of a superior who has the requisite knowledge.’ ” Id. at 241, n. 6 (citing Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)) (alteration in original).

This standard “may be useful in situations where many individuals act collectively in a large company[ ] [.]” Id.

[1-9] RESTATING THE CAUSATION ISSUE (SUFFICIENT KNOWLEDGE): “At issue is whether [Cornwell] … presented enough evidence to show that her supervisors had sufficient knowledge that she had taken a protected action under the Washington Law Against Discrimination (WLAD), RCW 49.60.030.” Id. at 231 (emphasis added).

“Without establishing this knowledge, Cornwell cannot demonstrate a potential causal link between the adverse employment action taken against her and her protected activity.” Id. (emphasis added).

[1-10] MICROSOFT’S ARGUMENT (NO CAUSAL LINK): In this case, “Microsoft argues that Cornwell failed to present sufficient evidence to create an issue of material fact that there is a causal link between her prior lawsuit and the adverse employment action taken against her.” Id. at 235. However, the Court disagreed with Microsoft’s argument for the following reasons.

[1-11] COURT DECLINES TO ADDRESS THE “GENERAL CORPORATE KNOWLEDGE” STANDARD: In this case, the Court “decline[d] to address the “general corporate knowledge” standard, because “[w]hile the standard may be useful in situations where many individuals act collectively in a large company, it is not applicable here where Cornwell’s two supervisors had actual knowledge of her prior lawsuit.” Id. at 241, fn. 6.

[1-12] CORNWELL PASSED THE “ACTUAL KNOWLEDGE” STANDARD: In this case, “Microsoft argue[ed] that Blake and McKinley did not have actual knowledge of Cornwell’s suit because they did not know the specific nature of the lawsuit— i.e., that it involved an allegation of discrimination in violation of WLAD.” Id. at 236 (internal citation omitted).

The Court found that “Microsoft’s focus on the managers’ knowledge about the substance of the suit [was] … misplaced.” Id. It then determined the relevant rule regarding causal connections:

A decision-maker need not have actual knowledge about the legal significance of a protected action. Instead, the decision-maker need have actual knowledge only that the employee took the action in order to prove a causal connection.

Id. (emphasis added).

The Court concluded that “Cornwell has presented sufficient evidence to survive summary judgment under the actual knowledge standard.” Id. at 235 (emphasis added). The Court reasoned:

Both Blake and McKinley had actual knowledge that Cornwell filed the prior lawsuit against Microsoft. Shortly after leaning this, and over the objection of other managers, they gave Cornwell the lowest possible rating, and Cornwell was laid off.

Id. at 239 (emphasis added). Thus, Cornwell presented satisfactory circumstantial evidence meeting both the proximity-in-time and abrupt-change-in-performance tests.

[1-13] CORNEWELL PASSED THE “KNEW OR SUSPECTED” STANDARD: In this case, the Court determined that “Cornwell easily meets the ‘knew or suspected’ standard to survive summary judgment on her retaliation claim.” Id. at 238 (emphasis added). The Court reasoned as follows:

[C]ornwell had to prove that Microsoft knew or suspected that she had taken a prior legal action. As previously discussed, Cornwell produced sufficient evidence showing that both Blake and McKinley had actual knowledge that Cornwell had filed a previous lawsuit against Microsoft.

Id. at 237-38 (emphasis added).

[1-14] CORNWELL PRESENTED ENOUGH EVIDENCE TO CREATE A DISPUTE OF FACT ABOUT A CAUSAL LINK: The Court held that “Cornwell presented sufficient evidence to survive summary judgment on the issues of knowledge and causation.” Id. at 232 (emphasis added).

KNOWLEDGE: The Court found that “[t]he evidence tends to show that both of Cornwell’s supervisors had actual knowledge that Cornwell had previously engaged in protected activity before they subjected her to adverse employment action.” Id. at 232. “Both Blake and McKinley had actual knowledge that Cornwell filed the prior lawsuit against Microsoft.” Id. at 239.

CAUSATION: The Court found that “Cornwell presented sufficient evidence to create a dispute of fact about whether there was a causal link between her poor performance rating and termination and the previous lawsuit she filed against Microsoft.” Id. “Shortly after [both Blake and Mckinley] learn[ed] [about Cornwell’s protected activity], and over the objection of other managers, Blake and McKinley gave Cornwell the lowest possible review rating, and Cornwell was laid off. ” Id.

The Court concluded that “[i]n light of this evidence, the trial court erroneously granted summary judgment to Microsoft.” Id. The Court “reverse[d] [the Court of Appeals] and remand[ed] the case to the trial court for further proceedings consistent with this opinion.” Id.

ISSUE #2: Should the Court adopt the “knew or suspected” standard for evaluating retaliation claims? Id. at 238-39.

[2-1] POLICY/PURPOSE – THE KNEW OR SUSPECTED STANDARD: “The purpose behind the ‘knew or suspected’ test is to protect employees from retaliation to the fullest extent possible:

It seems clear to this Court that an employer that retaliates against an employee because of the employer’s suspicion or belief that the employee filed a[ ] … complaint has as surely committed a violation of [the statute] as an employer that fires an employee because the employer knows that the employee filed a[ ] … complaint. Such construction most definitely furthers the purposes of the Act generally and the anti-retaliation provision specifically.

Id. at 238 (citing Reich v. Hoy Shoe Co., 32 F.3d 361, 368 (8th Cir. 1994) (alteration in original).

[2-2] POLICY/PURPOSE – WLAD RELIES ON ENFORCEMENT BY PRIVATE INDIVIDUALS: “It is well recognized that WLAD … relies heavily on private individuals for its enforcement. This reliance would be unrealistic, to say the least, ‘if this court does not provide them some measure of protection against retaliation.’ ” Id. (internal citations and quotation marks omitted) (alteration in original).

[2-3] POLICY/PURPOSE – RESTRICTING APPLICATION OF WLAD’S ANTIRETALIATION PROVISIONS CREATES INCONSISTENCIES: Restricting the application of WLAD’s antiretaliation provisions to instances of actual knowledge results in inconsistent protection of employees:

It would be a strange rule, indeed, that would protect an employee discharged because the employer actually knew he or she had engaged in protected activity but would not protect an employee discharged because the employer merely believed or suspected he or she had engaged in protected activity.

Id. (citing Reich, 32 F.3d at 368).

[2-4] POLICY/PURPOSE – EMPLOYMENT DECISIONS CAN BE BASED ON SUSPICION OR BELIEF: “Employers are not limited to retaliation decisions based on information they actually know to be true.” Id. at 238 (internal citation omitted). “Instead, ‘common sense and experience establish that employers also make employment decisions on what they suspect or believe to be true.’ ” Id.

[2-5] THE PRIMA FACIE CASE OF RETALIATION: “[A[s long as ‘[a] reasonable jury could infer from [a plaintiff’s] evidence’ that the plaintiff’s protected activity was a substantial factor in the adverse employment decision, that plaintiff has satisfied his or her burden of establishing a prima facie case of retaliation.” Id. at 239 (internal citation omitted) (alteration within original internal quote).

[2-6] THE KNEW OR SUSPECTED STANDARD IS CONSISTENT WITH PURPOSES OF WLAD: In this case, the Court first determined that “construing WLAD ‘to protect employees from adverse employment actions because they are suspected of having engaged in protected activity is consistent with the general purposes of the Act and the specific purposes of the antiretaliation provisions.’ ” Id. at 238 (internal citation omitted) (emphasis in original).

[2-7] DEFENDANT MIRCORSOFT’S ARGUMENT: THE STANDARD LEADS TO STRICT LIABILITY, ELIMINATES CAUSATION ELEMENT, AND INVITES SPECULATION : The Court then considered that “Microsoft and amici curiae the Association of Washington Business and the Chamber of Commerce of the United States of America contest adoption of the ‘knew or suspected’ standard.” Id.

Accordingly, “[both] … argue[d] that adopting the standard leads to strict liability for employers, eliminates the causation element of a retaliation prima facie case, and invites speculation into the summary judgment phase.” Id. The Court found each of their arguments unpersuasive.

[2-7a] THE KNEW OR SUSPECTED STANDARD DOES NOT LEAD TO STRICT LIABILITY OR ELIMINATE THE CAUSATION ELEMENT: In this case, the Court found that “[t]he ‘knew or suspected’ test does not lead to strict liability or eliminate the requirement that a retaliation be intentional.” Id. at 238.

“Instead, the test eliminates the right of employers to intentionally retaliate against employees that they suspect but do not actually know to have taken protected action.” Id.

“An employee must still produce sufficient evidence that his or her protected activity was a substantial factor in the employer’s decision to take adverse action against the employee.” Id. (citing Allison, 118 Wn.2d at 96, 821 P.2d 34) (emphasis added). Accordingly, the causation element is preserved.

[2-7b] THE KNEW OR SUSPECTED STANDARD DOES NOT INVITE SPECULATION INTO THE SUMMARY JUDGMENT PHASE: In this case, the Court asserted that “the [‘knew or suspected’] standard requires the production of evidence; mere speculation will not suffice to defeat summary judgment.” Id. at 238-39 (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359-60, 753 P.2d 517 (1988) (“The ‘facts’ required by CR 56(e) to defeat a summary judgment motion are evidentiary in nature. Ultimate facts or conclusions are insufficient. Likewise, conclusory statements of fact will not suffice.” (citation omitted) ) (internal quotation marks omitted) (emphasis added).

The Court concluded that “as long as ‘[a] reasonable jury could infer from [a plaintiff’s] evidence’ that the plaintiff’s protected activity was a substantial factor in the adverse employment decision, that plaintiff has satisfied his or her burden of establishing a prima facie case of retaliation.” Id. at 239 (internal citation omitted) (alteration, within internal quote, in original ) (emphasis added).

[2-8] THE COURT ADOPTS THE “KNEW OR SUSPECTED” STANDARD: “For these [above] reasons, [the Court] … adopt[ed] the “knew or suspected” standard because it furthers WLAD’s purpose of protecting employees from retaliation.” Id. at 239.

NOTABLES & IMPLICATIONS:

(1) CIRCUMSTANTIAL EVIDENCE: THE PROXIMITY-IN-TIME CLOCK STARTS WHEN WRONGDOER LEARNS OF PROTECTED ACTIVITY: “To properly evaluate whether there is sufficient circumstantial evidence of retaliation, we must focus on the proximity between when [the actual wrongdoer(s)] … learned of the [protected activity] … and the adverse employment actions that they subsequently took.” See id. at 241, n. 10.

In this case, Blake and McKinley, as wrongdoers, learned about Cornwell’s protected activity when Blake and McKinley (i.e., wrongdoers) had actual knowledge that Cornwell filed the prior lawsuit against Microsoft; not when Cornwell actually filed the prior lawsuit against Microsoft. See id.

PROXIMITY IN TIME: A FEW MONTHS IS ENOUGH TO GIVE RISE TO INFERENCE OF RETALIATORY MOTIVE: Moreover, a few months time between when the wrongdoers “learned of the lawsuit and the adverse employment actions that they subsequently took” is considered “enough to give rise to a reasonable inference of retaliatory motive. Id. at 241, n. 10. In this case:

Cornwell told Blake about the lawsuit in late 2011. In July 2012, Blake and McKinley rated Cornwell as a “5,” and Cornwell was laid off in September 2012.

Id. at 241, n. 9. These timeframes were enough for Cornwell to establish a reasonable inference of retaliatory motive.

(2) THE DISSENT (GORDON MCCLOUD, J.): MAJORITY’S ANALYSIS IS OVER-INCLUSIVE AS TO TORTS & UNDERINCLUSIVE AS TO GENDER DISCRIMINATION: In this case, Judge Gordon McCloud dissented and both agreed and disagreed with the majority. The dissent agreed as follows:

[I] agree with the majority’s main conclusion that a plaintiff can show retaliatory discharge in violation of the Washington Law Against Discrimination (WLAD), RCW 49.60.030, without showing that the employer had actual knowledge of the plaintiff’s prior protected activity. A plaintiffs showing that the employer suspected that the plaintiff had previously engaged in WLAD-protected activity is enough to establish the causation requirement of a WLAD retaliatory discharge claim.

Id. at 239. However, the dissent disagreed with the majority as follows:

But I disagree with the majority’s application of that legal standard to the facts of this case. The majority identifies nothing in the record showing that Dawn Cornwell’s current supervisors knew or suspected that her prior lawsuit involved the WLAD-prohibited activity of sex discrimination.

Id. (emphasis added).

The dissent reasoned that the majority’s “analysis creates a standard that is both significantly over-inclusive in certain respects and significantly under-inclusive in other respects.” Id. at 239-240 (emphasis added).

DISSENT ASSERTS MAJORITY’S STANDARD IS OVER-INCLUSIVE: The dissent argued that “the majority’s analysis is [incorrectly] over-inclusive because it assumes that a female employee’s lawsuit about a male supervisor and a review score could not have alleged anything but sex discrimination.” Id. at 240. However, “[b]esides common law torts, such a lawsuit could allege any number of statutory retaliation claims that do not implicate the WLAD.” Id.

DISSENT ASSERTS MAJORITY’S STANDARD IS UNDERINCLUSIVE: Here, the dissent essentially argued that “the majority’s approach is also under-inclusive[,]” because sex discrimination in employment could also include “female supervisors vis-a-vis female or male employees.” Id. at 241.

(3) THE MAJORITY’S REBUTTAL TO THE DISSENT: DISSENT’S ANALYSIS IS TOO LIMITED & HYPOTHETICAL CLAIMS ARE SURPLUSAGE: In this case, the Court majority rebutted the dissent as follows:

Contrary to the dissent’s criticisms, it is because of all of the facts here discussed, not merely because Cornwell’s prior suit involved a male supervisor, that her claim survives summary judgment. Further, also despite the dissent’s assertions, we know that Cornwell’s prior suit related to sex discrimination; we do not make (or need to make) the “over-inclusive” assumption that all suits by a female employee against a male supervisor involve sex discrimination. Accordingly, the dissent’s list of hypothetical claims that might have been brought is surplusage.

Id. at 241 (internal citations omitted) (emphasis in original).

(4) THE “KNEW OR SUSPECTED” STANDARD: APPLIED IN 9TH CIRCUIT: “The ‘knew or suspected’ standard has been applied by the United States Court of Appeals, Ninth Circuit, as well as by other federal courts in the OSHA context.” Id. at 241, n. 11 (“See, e.g., Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107 (9th Cir. 2003); Reich, 32 F.3d 361″).

(5) UNLAWFUL RETALIATION: ADVERSE EMPLOYMENT ACTIONS: POOR PERFORMANCE RATINGS: For purposes of proving a claim of unlawful retaliation, a poor employment performance evaluation rating that prevents an employee “from being considered for future rehiring … qualifies as an adverse employment action.” See id. at 241, n. 4 (referencing Jin Zhu v. N. Cent. Educ. Serv. Dist. — ESD 171, 189 Wn.2d 607 , 619, 404 P.3d 504 (2017) (“An employment action is adverse if it is harmful to the point that it would dissuade a reasonable employee from making complaints of … retaliation.”) (internal quotation marks and citation omitted).

(6) UNLAWFUL RETALIATION (WLAD): ISSUE OF 1ST IMPRESSION: QUANTUM OF EMPLOYMENT KNOWLEDGE: This WLAD unlawful-retaliation case presented the Washington State Supreme Court with an issue of first impression, as follows:

At issue here is the quantum of employer knowledge about the employee’s prior protected activity. We have yet to address this question in a case.

Id. at 235.

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July 7, 2021May 26, 2022

Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79 (Wash. 1991)

This is a case summary of Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79 (Wash. 1991). Subjects include:

» RCW 49.60.210

» RETALIATORY DISCHARGE

» CAUSATION

» SUBSTANTIAL-FACTOR APPROACH

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**Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79 (Wash. 1991)**

case summarY – 7 PRIMARY Facts:

[1] Allison sued the Housing Authority of the City of Seattle [(hereinafter, ‘Housing Authority’)], claiming, among other things, that the Housing Authority retaliated against here for filing an age discrimination complaint when she was released in a reduction in force.

[2] In a special verdict form, a jury found that the Housing Authority had discriminated and/or retaliated against Allison when she was laid off.

[3] The Housing Authority appealed to the Court of Appeals, claiming that the jury instruction on proximate causation for a retaliation claim was erroneous.

[4] That jury instruction required Ms. Allison to show that her discharge was motivated “to any degree by retaliation.”

[5] On appeal, the Washington State Court of Appeals Division I reversed and remanded the case, holding that the jury instruction should have required Allison to show that, but for filing a discrimination complaint, she would not have been discharged.

[6] [The WA Supreme Court] declined to adopt either the ‘but for’ standard advanced by the Court of Appeals or the ‘to any degree’ standard used by the trial court.

[7] [The WA Supreme Court] adopt[ed] an intermediate standard for causation, a ‘substantial factor’ approach, and remanded this case to the trial court.

Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79 (Wash. 1991) (internal citations omitted).

ISSUE #1: What is the appropriate standard of causation when an employee brings a claim of retaliatory discharge under RCW 49.60.210?

[1-1] WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): The Washington Law Against Discrimination (WLAD) “contains a sweeping policy statement strongly condemning many forms of discrimination.” Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79, 85 (Wash. 1991) (citing RCW 49.60.010).

[1-2] WLAD REQUIREMENT OF LIBERAL CONSTRUCTION: The WLAD requires that it “shall be construed liberally for the accomplishment of the purposes thereof.” Id. at 85-86 (citing RCW 49.60.020).

[1-3] QUESTIONS OF STATUTORY CONSTRUCTION: In resolving a question of statutory construction, the Court will “adopt the interpretation which best advances the legislative purpose.” Id. at 86 (internal citations and quotation marks omitted).

[1-4] TITLE VII DOES NOT REQUIRE LIBERAL CONSTRUCTION: Federal case law “is not unequivocal, and is only persuasive authority.” Id. at 91. And “Title VII differs from RCW 49.60 in that Title VII does not contain a provision which requires liberal construction for the accomplishment of its purposes.” Id. at 88 (hyperlinks added).

[1-5] THE FOUR LEGAL ARGUMENTS: The Court evaluated the issue based on several argument categories as follows:

(1) arguments based on the language of RCW 49.60;

(2) arguments based on Federal and Washington state case law;

(3) arguments based on public policy considerations; and

(4) the Wilmot case.

[1-6] THE LANGUAGE OF RCW 49.60: The Court determined that the “language of RCW 49.60 supports a more liberal standard of causation than the ‘but for’ standard adopted by the Court of Appeals. Id. at 85 (hyperlink added).

The Housing Authority utilized Title VII cases for analogy and attempted to argue theoretically higher causation requirements under RCW 49.60.180 (discrimination) should also be applied to RCW 49.60.180 case” and, thus, such a standard “may be illusory”; that Title VII differs from RCW 49.60 because it “does not contain a provision which requires liberal construction for the accomplishment of its purposes”; and that “the ‘but for’ standard of causation adopted by the Court of Appeals in the instant case would negatively affect enforcement of WLAD. Id. at 88.

[1-7] THE FEDERAL & STATE CASE LAW: The Court considered various case law offered by the parties at both the federal and state level. It then concluded that federal case law does not give clear support for the adoption of a stringent “but for” standard of causation, and state case law does not directly address the issue of whether the liberal “to any degree” language should be used in jury instructions; and the Court has never approved the “to any degree” standard. Id. at 91.

“Because federal law is not unequivocal, and is only persuasive authority, we adopt a standard that best corresponds with the language and policies contained in this state’s antidiscrimination law.” Id. at 91.

[1-8] THE PUBLIC POLICY CONSIDERATIONS: The Court evaluated policy considerations at opposite ends of the dichotomy — the “but for” test on the one end and the “to any degree” test on the other.

It then reasoned that competing policy considerations dictate that the most sensible approach is to adopt an intermediate standard test–the “substantial factor” approach–generally applied in multiple causation cases. Id. at 95.

This would address the issue of both legitimate and illegitimate motives that often lurk behind discriminatory or retaliatory discharge while preventing employees from abusing the protection that the–“to any degree”–lower standard of causation would give them.

[1-9] THE WILMOT CASE: The Court then applied the public policy considerations that it expressed in Wilmot v. Kaiser Aluminum & Chemical Corp., 118 Wn.2d 46, 821 P.2d 18; a case in which the court applied the “substantial factor” approach to a retaliation claim under RCW 51.48.025 for filing a workers’ compensation claim.

Particularly, the court analogized Wilmot to the instant case by explaining (a) that in both cases, the relevant statutes prohibit an employer from retaliating against an employee for opposing discrimination; and (b) that under both statutes, “employees are at a distinct disadvantage in a retaliation case because they must prove causation without the benefit of the employer’s own knowledge of the reason for the discharge” — “an employee does not have the access to proof that an employer usually has.” Id. at 96.

[1-10] CAUSATION REQUIRES SHOWING RETALIATION WAS SUBSTANTIAL FACTOR: The Court in this case held that a “plaintiff bringing suit under RCW 49.60.210 must prove causation by showing that retaliation was a substantial factor motivating the adverse employment decision.” Id. at 96 (hyperlink added).

[1-11] REMAND FOR RETRIAL: It then remanded the cause to the trial court for retrial on the issue of whether age discrimination and/or retaliation caused Allison’s discharge.

ISSUE #2: Is the evidence in this case insufficient to support an inference that discrimination and/or retaliation caused Allison’s discharge?

(The Court evaluated an unpublished portion of the Court of Appeals’ opinion in this case)

[2-1] TESTIMONIAL EVIDENCE: Testimonial evidence that supports an inference of discrimination and/or retaliation, when looked at in a light most favorable to the plaintiff, may be sufficient to allow a case to go to the jury. See id. at 98.

[2-2] EMPLOYER ARGUMENT: The employer (Housing Authority) in this case argued that there was insufficient evidence to support an inference that discrimination and/or retaliation caused Allison’s discharge. Id. at 96.

[2-3] COURT CONSIDERED TRIAL COURT EVIDENCE REGARDING DISCRIMINATION CLAIM: The Court considered the following trial court evidence regarding Allison’s discrimination claim: (a) Allison’s manager made remarks about “little old ladies”; (b) the manager became hostile towards Allison when she learned Allison’s true age of 62; (c) after the manager learned Allison was in her sixties, her ratings of Allison declined; and (d) the manager refused Allison’s request for additional work. Id. at 97.

[2-4] COURT CONSIDERED TRIAL COURT EVIDENCE REGARDING RETALIATION CLAIM: The Court considered the following trial court evidence regarding Allison’s retaliation claim: (a) Allison’s manager gave her an allegedly unwarranted reprimand; (b) after Allison filed her suit, the manager gave Allison her lowest performance evaluation; and (c) an “aging checklist” was pinned on Allison’s cubicle after she filed her discrimination suit. Id.

[2-5] COURT OF APPEALS WAS CORRECT: The Court held that “based on the evidence listed above, the Court of Appeals was correct in its conclusion that there was thin, but sufficient testimony for this case to go to the jury.”

The Court also addressed attorney’s fees.

NOTABLES & IMPLICATIONS:

ATTORNEY FEES

(1) RCW 49.60.030(2) has been interpreted as granting parties a right to attorney fees on appeal. Id. at 98 (citing Fahn v. Cowlitz Cy., 95 Wn.2d 679, 685, 628 P.2d 813 (1981); Pannell v. Food Servs. of Am., 61 Wn.App. 418, 449-50, 810 P.2d 952 (1991)).

CAUSATION

(2) In 1895, the civil rights act was amended to add the broad classification “public places.” Id. (internal citations omitted).

MCDONNELL DOUGLAS APPROACH

(3) Under the McDonnell Approach–McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973)–“the plaintiff must establish a prima facie case, and then the burden of production shifts to the defendant to state a legitimate reason for the employment decision; the plaintiff can attempt to prove that the employer’s offered reason is a pretext.” Id. at 88-89 (internal citations omitted).

(4) Under the McDonnell Approach, “the burden of persuasion remains at all times upon the pliantiff/employee” in a discrimination or retaliation claim. Id. at 90, 93 (citing Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 363, 753 P.2d 517 (1988); and citing Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 821 P.2d 18 (1991), respectively).

(5) Under the McDonnell approach, the “federal cases provide only guidance” and “even the McDonnell test should not be rigidly applied. Id. (citing Grimwood, 110 Wn.2d at 362, 753 P.2d 517 (1988)).

WLAD GENERALLY

(6) The WLAD “does not provide any criteria for establishing a discrimination case.” Id. at 88 (citing Grimwood, 110 Wn.2d at 361).

(7) The WLAD “contains a sweeping policy statement strongly condemning many forms of discrimination.” Id. at 85 (citing RCW 49.60.010).

(8) The WLAD requires that “this chapter shall be construed liberally for the accomplishment of the purposes thereof.” Id. at 85-86 (citing RCW 49.60.020).

(9) The enforcement of the WLAD “depends in large measure on employee’s willingness to come forth and file charges or testify in discrimination cases. Id. at 86.

(10) Plaintiffs bringing discrimination cases assume the role of a private attorney general, vindicating a policy of the highest priority.” Id. (internal citations and quotation marks omitted).

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July 7, 2021November 26, 2022

Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash 2002)

This is a case summary of Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash 2002). Subjects include, but are not limited to the following:

» DISABILITY-BASED HOSTILE WORK ENVIRONMENT

» WORKERS’ COMPENSATION ANTI-RETALIATION STATUTE

» INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

» DEFAMATION

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**Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash 2002)**

case summarY – 22 Facts:

[1] This suit arises out of Linda Robel’s employment from May 31, 1995, to September 12, 1996, in the service deli at … [the] Fred Meyer store in Spokane.

[2] On July 14, 1996, Robel sustained a workplace injury and timely filed a workers’ compensation claim.

[3] In late July, Robel was given a light-duty assignment, “a four-hour shift” during which she stood “at a display table outside the deli area offering samples of food items to customers.”

[4] On August 1, 1996, as Robel worked at the display table, two deli workers “laughed” and “acted out a slip and fall,” as one of them yelled, “Oh, I hurt my back, L & I, L & I!”

[5] They “audibly called [Robel] a ‘bitc[-]’ and ‘cun[-].'”

[6] They also “told customers she had lied about her back and was being punished by Fred Meyer by ‘demoing’ pizzas.”

[7] In journal entries for August 2, 3, 10, and 11, Robel wrote that assistant deli manager Amy Smith and others made fun of her, laughed, pointed, and gave her “dirty looks.”

[8] Robel also noted that on August 13, Smith and other deli workers would “stare at [her], whisper out loud, & laugh, pretending to hurt their backs & laugh.”

[9] Robel reported the incidents to her union representative, … Banka.

[10] According to Robel’s journal, Banka came in on August 14, 1996, and set up a meeting with … Wissink, the store director, for Friday, August 16.

[11] At [a subsequent all-deli employee meeting, called by Wissink on August 19, 1996,] Wissink warned the employees that future harassment could result in termination.

[12] On August 22, 1996, deli workers “laughed and audibly admonished each other not to harass Robel.”

[13] On August 28 and 30, Robel noted in her journal that co-workers were talking about her and laughing at her, and she recorded that, on September 2, Smith and other workers “had a great time making fun of [her], calling [her] names[,] pretending to hurt their backs & yelling L & I.”

[14] On September 13, 1996, Robel secured a two-week work release from her doctor and gave it to Smith that same day.

[15] Before Robel left the deli, she overheard Smith comment to other deli employees, “Can you believe it, Linda’s gonna sit on her big ass and get paid.”

[16] Robel again contacted [her union rep], who in turn contacted Wissink on September 20, 1996.

[17] On September 24, Wissink telephoned Robel to confirm the allegations. Robel “told him about the C word and Bitc[-][,] the little plays they were doing about [her] back.”

[18] On September 28, 1996, Wissink terminated one employee.

[19] Robel never returned to work at Fred Meyer.

[20] On February 13, 1998, Robel filed suit against Fred Meyer, stating claims for disability discrimination …, retaliation for filing a workers’ compensation claim …, negligent and intentional infliction of emotional distress, and defamation.

[21] The trial court denied Fred Meyer’s motion for summary judgment … [f]inding for Robel on all five causes of action[.]

[22] Fred Meyer appealed. The Court of Appeals reversed the trial court’s judgment on all claims.

Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash 2002) (internal citations omitted) (hyperlink added).

ISSUE #1: Does the Washington Law Against Discrimination, Chapter 49.60 RCW, support an employee’s disability based hostile work environment claim?

[1-1] WASHINGTON LAW AGAINST DISCRIMINATION: Under the Washington Law Against Discrimination (WLAD), RCW 49.60, “It is an unfair practice for any employer to discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability.” Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash 2002) (citing RCW 49.60.180(3)) (alteration to the original).

[1-2] RULES OF CONSTRUCTION: To determine whether the Washington Law Against Discrimination “supports a disability claim based on hostile work environment, [courts] may look to federal cases construing analogous federal statutes.” Id. (citing Fahn v. Cowlitz County, 93 Wash.2d 368, 376, 610 P.2d 857 (1980), 621 P.2d 1293 (1980)).

[1-3] ISSUE OF FIRST IMPRESSION: In this case, the Court determined that whether the Washington Law Against Discrimination supported a disability based hostile work environment was an issue of first impression in the State.

It reasoned that “just as the federal cases extended the Title VII hostile work environment claim (and its standards of proof) to the ADA, we may extend the reasoning in Glasgow to disability claims.” Id. at 45 (hyperlinks added).

[1-4] WLAD SUPPORTS DISABILITY-BASED HOSITLE WORK ENVIRONMENT CLAIMS: The Court held that “the [Washington Law Against Discrimination] … supports a disability based hostile work environment claim.” Id. at 43.

ISSUE #2: Did the trial court’s unchallenged findings of fact support its conclusion of law that Fred Meyer discriminated against Robel based upon her physical disability?

[2-1] DISABILITY BASED HOSTILE WORK ENVIRONMENT: In order to establish a disability based hostile work environment case, a plaintiff must prove “(1) that he or she was disabled within the meaning of the antidiscrimination statute[, WLAD], (2) that the harassment was unwelcome, (3) that it was because of the disability, (4) that it affected the terms and conditions of employment, and (5) that it was imputable to the employer.” Id. at 45.

[2-2] THE SECOND ELEMENT (UNWELCOME): To establish that the harassment was unwelcome, “the plaintiff must show that he or she ‘did not solicit or incite it’ and viewed it as ‘undesirable or offensive.'” Id. (citing Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401, 406, 693, P.2d 708 (Wash. 1985)).

[2-3] THE THIRD ELEMENT (BECAUSE OF DISABILITY): To establish that the harassment was “because of disability,” requires “[t]hat the disability of the plaintiff-employee be the motivating factor for the unlawful discrimination.” Id. at 46 (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708)) (alteration to the original). This element requires a nexus between the specific harassing conduct and the particular injury or disability. Id.

[2-4] THE FOURTH ELEMENT (TERMS & CONDITIONS OF EMPLOYMENT): To establish that the harassment affected the terms and conditions of employment, “the harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. at (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708)) (alteration to the original).

“[A] satisfactory finding on this element should indicate “that the conduct or language complained of was so offensive or pervasive that it could reasonably be expected to alter the conditions of plaintiff’s employment.'” Id. (citing 6A WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 330.23, at 240) (alteration to the original) (hyperlink added).

[2-5] THE FIFTH ELEMENT (IMPUTABLE TO EMPLOYER): To impute harassment to an employer, “the jury must find either that (1) an owner, manager, partner or corporate officer personally participate[d] in the harassment or that (2) the employer … authorized, knew, or should have known of the harassment and failed to take reasonably prompt adequate corrective action.” Id. at 47 (internal citation and quotation marks omitted) (alteration to the original).

[2-6] THE FIRST ELEMENT (DISABLED): In this case, neither party contested that Robel’s injury was a disability under RCW 49.60.180(3). Id. at 35. Therefore, the Court did not further define disabled within the meaning of the antidiscrimination statute. Id.

[2-7] THE SECOND ELEMENT (UNWELCOME): The Court found that no findings suggested that Robel solicited or incited the remarks made about her workplace injury. Id. at 45. That Robel viewed the employer’s conduct as undesirable and offensive was at least implicit in her reporting the conduct to Banka (her Union Representative). Id. at 45-46.

[2-8] THE THIRD ELEMENT (BECAUSE OF DISABILITY): The trial court found that the verbal and non-verbal harassment of Robel in the work setting after July 14, 1996, was directly or proximately related to her disability and/or Fred Meyer’s perception of Robel as disabled. See id. at 46. The Court, in the instant case, elected not to substitute their judgment for that of the trial court. Id.

[2-9] THE FOURTH ELEMENT (TERMS & CONDITIONS OF EMPLOYMENT): The trial court found that Fred Meyer created a hostile and abusive work environment and that the environment was offensive to Robel. Id. at 46-47 (internal quotation marks omitted).

The Court, in the instant case, pointed to an additional trial court finding as follows: “Fred Meyer discriminated against Robel in the terms or conditions of employment when it participated in and/or failed to bring to an end … the verbal and non-verbal harassment of Robel in the work setting.” Id. at 47.

The Court found that this language echoed the “critical language from Glasgow and the pattern jury instruction”; it accepted the findings as “verities” and passed on “any reweighing of the evidence supporting them.” Id.

[2-10] THE FIFTH ELEMENT (IMPUTABLE TO EMPLOYER): The Court identified relevant trial court findings as follows:

[a] “Fred Meyer, through the acts of its managers, participated, authorized, knew and/or should have known of the verbal and non-verbal harassment of Robel in the work setting subsequent to July 14, 1996[;]”

[b] “Fred Meyer’s management personnel improperly participated in and/or allowed the verbal and non-verbal harassment in the work setting[;]”

[c] “deli manager Potts and assistant deli manager Smith were management personnel for purposes of employer liability[;]”

[d] “Fred Meyer’s remedial action … was not of such nature to have been reasonably calculated to end the harassment[;]”

[e] “[Fred Meyer’s] investigations and termination of [one co-worker] without further management corrections were inadequate[;]” and

[f] “the postinjury harassment was ‘imputed to Fred Meyer.'”

Id. at 48 (internal citations and quotation marks omitted) (lettered paragraphs added).

The Court found that these uncontested findings of fact satisfy both options derived from Glasgow. Id.

[2-11] COURT OF APPEALS REVERSED / TRIAL COURT JUDGMENT REINSTATED: The Court concluded “that the Court of Appeals erred when it ignored the trial court’s unchallenged findings of fact on the five essential elements of the claim.” Id. at 48. It then reversed “the Court of Appeals and reinstated the trial court’s judgment in Robel’s favor.” Id.

ISSUE #3: Did the trial court’s unchallenged findings of fact support the conclusion that Fred Meyer, in violation of RCW 51.48.025(1), retaliated against Robel for filing a workers’ compensation claim?

[3-1] WORKERS’ COMPENSATION ANTI-RETALIATION STATUTE: The Washington Industrial Insurance Act “provides that no employer may discharge or in any manner discriminate against any employee because such employee has filed or communicated to the employer an intent to file a claim for compensation or exercises any rights provided under this title.” Id. at 48-49 (citing RCW 51.48.025(1)) (emphasis in original).

[3-2] FRAMING THE ISSUE: In this case, the Court framed the issue essentially as follows: Whether the Workers’ Compensation Anti-Retaliation Statute, RCW 51.48.025(1), applies to an employer “who has allegedly discriminated in some way, short of discharge, against an employee because she filed a workers’ compensation claim[?]” See id. at 50.

[3-3] ELEMENTS OF THE CLAIM: It then found that, “by analogy with Wilmot v. Kaiser Aluminum & Chemical Corp., 118 Wn.2d 46, 68, 821 P.2d 18 (1991), which required proof of a causal connection between the filing of a claim and the allegedly retaliatory termination, Robel was required to prove [1] that she had filed a claim, [2] that Fred Meyer thereafter discriminated against her in some way, and [3] that the claim and the discrimination were causally connected.” Id. at 50.

[3-4] FINDINGS OF FACT SATISFY THE ELEMENTS: The Court held that “because the findings of fact satisfy these elements and were not challenged on appeal, we reverse the Court of Appeals on the retaliation claim and reinstate the trial court’s judgment in Robel’s favor.” Id.

ISSUE #4: Did the Court of Appeals properly hold as a matter of law that Robel’s claim for intentional infliction of emotional distress should not go to the trier of fact?

[4-1] IIED ELEMENTS: To succeed on a claim for outrage–also known as intentional infliction of emotional distress (IIED)–“a plaintiff must prove three elements: (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) severe emotional distress on the part of the plaintiff.” Id. at 51 (internal citations and quotation marks omitted) (emphasis added).

[4-2] QUESTIONS FOR THE JURY: The three elements are fact questions for the jury, and the first element of the test goes to the jury only after the court determines “if reasonable minds could differ on whether the conduct was sufficiently extreme to result in liability.” Id.

[4-3] EXTREME & OUTRAGEOUS CONDUCT: To establish the first IIED element, the plaintiff must prove “that the conduct was 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 Dicomes v. State, 113 Wn.2d 612, 630, 782 P.2d 1002 (1989)) (internal quotation marks omitted).

[4-4] RELATIONSHIP BETWEEN PARTIES (IIED): In an outrage claim “[t]he relationship between the parties is a significant factor in determining whether liability should be imposed.” Id. at 52 (citing Contreras v. Crown Zellerback Corp., 88 Wn.2d 735, 741, 565 P.2d 1173 (1977)).

“The Contreras court emphasized that ‘added impetus’ is given to an outrage claim ‘[w]hen one in a position of authority, actual or apparent, over another has allegedly made racial slurs and jokes and comments.” Robel, 148 Wn.2d at 52 (citing Contreras, 88 Wn.2d 735, 741, 565 P.2d 1173 (1977); see also White v. Monsanto Co., 585 So.2d 1205, 1210 (La. 1991) (stating that “plaintiff’s status as an employee may entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if her were a stranger”)).

[4-5] VICARIOUS LIABILITY: “Once an employee’s underlying tort is established, the employer will be held vicariously liable if ‘the employee was acting within the scope of his employment.'” Id. at 53 (citing Dickinson v. Edwards, 105 Wn.2d 457, 469, 716 P.2d 814 (1986)).

“An employer can defeat a claim of vicarious liability by showing that the employee’s conduct was (1) ‘intentional or criminal’ and (2) ‘outside the scope of employment.'” Id. (citing Niece v. Elmview Group Home, 131 Wn.2d 39, 56, 929 P.2d 420 (1997) (emphasis in original), quoted with approval in Snyder v. Med. Servs. Corp. of E. Wash., 145 Wn.2d 233, 242-43, 35 P.3d 1158 (2001)).

[4-6] SCOPE OF EMPLOYMENT: “An employee’s conduct will be outside the scope of employment if it “is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.'” Id. (citing RESTATEMENT (SECOND) OF AGENCY § 228(2) (1958); see also RESTATEMENT, supra, § 228(1)).

[4-7] FIRST ELEMENT (EXTREME & OUTRAGEOUS CONDUCT): “Robel was called in her workplace names so vulgar that they have acquired nicknames, such as ‘the C word,’ for example.” Id. at 52. (internal citation omitted) (emphasis in original).

[4-8] VICARIOUS LIABILITY: “Fred Meyer deli workers tormented Robel on company property during working hours, as they interacted with co-workers and customers and performed the duties they were hired to perform. Nothing in the record suggests that the abusive employees left their job stations or neglected their assigned duties to launch the verbal attacks on Robel.” Id. at 54.

[4-9] REASONABLE MINDS COULD CONCLUDE EXTREME AND OUTRAGEOUS CONDUCT: On the threshold question (extreme and outrageous conduct) the Court concluded that reasonable minds could conclude that, in light of the severity and context of the conduct, it was beyond all possible bounds of decency, atrocious, and utterly intolerable in a civilized community. See id. at 51-52.

[4-10] FRED MEYER VICARIOUSLY LIABLE: The Court also concluded that Fred Meyer was vicariously liable, “that reasonable minds could find the complained-of conduct outrageous, and that the uncontested findings satisfied the three elements of outrage.” Id. at 54-55.

[4-11] COURT OF APPEALS REVERSED / REINSTATED TRIAL COURT’S JUDGMENT FOR ROBEL ON IIED: The Court then reversed the Court of Appeals and reinstated the trial court’s judgment for Robel on her claim for intentional infliction of emotional distress. Id. at 55. Because Robel was successful on this claim, the Court found it unnecessary to consider Robel’s companion claim for negligent infliction of emotional distress. Id.

ISSUE #5: Were the allegedly defamatory communications cited in the trial court’s findings capable of defamatory meaning?

[5-1] DEFAMATION: A defamation plaintiff must prove the following four essential elements: (1) falsity, (2) an unprivileged communication, (3) fault, and (4) damages. Id. at 55 (citing Mark v. Seattle Times, 96 Wn.2d 473, 486, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124, 102 S.Ct. 2942, 73 L.Ed. 2d 1339 (1982)) (emphasis added).

[5-2] FALSITY: “Before the truth or falsity of an allegedly defamatory statement can be assessed, a plaintiff must prove that the words constituted a statement of fact, not an opinion. Because expressions of opinion are protected under the First Amendment, they are not actionable.” Id. (citing Camer v. Seattle Post-Intelligencer, 45 Wn.App. 29, 39, 723 P.2d 1195 (1986) (internal quotation marks and citations omitted) (emphasis added).

“Whether the allegedly defamatory words were intended as a statement of fact or an expression of opinion is a threshold question of law for the court.” Id. (internal citations omitted).

[5-3] TOTALITY OF THE CIRCUMSTANCES: To determine whether words should be viewed as nonactionable opinions, the court considers the totality of the circumstances surrounding those statements. Id. at 56.

[5-4] DUNLAP 3-FACTOR TEST: To determine whether a statement is nonactionable, a court should consider at least (1) the medium and context in which the statement was published, (2) the audience to whom it was published, and (3) whether the statement implies undisclosed facts.” Id. (citing Dunlap v. Wayne, 105 Wn.2d 529, 539, 716 P.2d 842 (1986)).

[5-5] THE VULGARISMS (I.E., “BITC-,” “CUN-,” “FUC-ING BITC-,” “FUC-ING CUN-“) ALONG WITH THE WORD “IDIOT”: The Court concluded that these vulgarisms along with the word “idiot” were plainly abusive words, but they were not intended to be taken literally as statements of fact. Id. Thus, they did not pass the threshold question of law.

[5-6] THE WORDS “SNITCH,” “SQUEALER,” AND “LIAR”: The Court considered the totality of the circumstances and applied the Dunlap Three-Factor Test. It held as a matter of law that these words also constituted nonactionable opinions. Id. at 56.

Regarding the first Dunlap Factor (Medium & Context): the Court found that the oral statements were made in circumstances and places that invited exaggeration and personal opinion. Id.

Regarding the second Dunlap Factor (The Audience): the Court found that the employee audience (i.e., Fred Meyer co-workers and management personnel) was “prepared for mischaracterization and exaggeration” and would have registered the words, if at all, “as expressions of personal opinion, not as statements of fact.” Id. at 57. And customers hearing the words “would reasonably perceive that the speaker was an antagonistic or resentful co-worker.” Id.

Regarding the third Dunlap Factor (Whether the Words Implied Undisclosed Defamatory Facts): deli workers would have known the facts ostensibly underlying the words, and the words disclosed to customers (i.e., “that Robel was demoing pizzas because she had lied about her back”) “implies no undisclosed defamatory facts.” Id. (internal quotation marks omitted).

[5-7] ALL OF THE UTTERANCES WERE NONACTIONABLE OPINIONS: The Court concluded that all of the utterances were nonactionable opinions and reaffirmed the reversal of the trial court’s judgment on Robel’s defamation claim. Id.

NOTABLES & IMPLICATIONS:

DISABILITY

(1) This case adds an additional initial element to the hostile work environment rule for cases based on disability: He or she must be disabled within the meaning of the Washington Law Against Discrimination.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED)

(2) The standard for an outrage claim is very high (meaning that the conduct supporting the claim must be appallingly low). See id. at 51.

(3) Relationship Between Parties. In an outrage claim, “[t]he relationship between the parties is a significant factor in determining whether liability should be imposed.” Id. at 52 (citing Contreras v. Crown Zellerback Corp., 88 Wn.2d 735, 741, 565 P.2d 1173 (1977)).

“The Contreras court emphasized that ‘added impetus’ is given to an outrage claim ‘[w]hen one in a position of authority, actual or apparent, over another has allegedly made racial slurs and jokes and comments.” Id. (citing Contreras, 88 Wn.2d 735, 741, 565 P.2d 1173 (1977); see also White v. Monsanto Co., 585 So.2d 1205, 1210 (La. 1991) (stating that “plaintiff’s status as an employee may entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if her were a stranger”)).

PERSONAL JOURNALS / DIARIES

(4) In Washington State, an employee’s personal journal entries regarding discrimination at work might be allowed by the court to support a claim of unlawful employment discrimination. See, e.g., id. at 41.

SEXUAL HARASSMENT

(5) Washington Law Against Discrimination prohibits sexual harassment in employment, with such claims being generally categorized as quid pro quo harassment claims or hostile work environment claims. See id. at 43 (citing DeWater v. State, 130 Wn.2d 128, 134-35, 921 P.2d 1059 (1996)) (internal citations and quotation marks omitted).

TITLE VII & WLAD

(6) “The [Washington Law Against Discrimination,] … which applies with equal force to sex based and disability based employment discrimination, is analogous to Title VII and the ADA.” Id. at 44.

(7) Although federal cases interpreting Title VII are not binding on the Court, they are instructive and supportive. See id. at 44.

VICARIOUS LIABILITY

(8) Intentional or criminal conduct is not per se outside the cope of employment. Id. at 53.

(9) It is not the case that an employer will be vicariously liable only where it has specifically authorized an employee to act in an intentionally harmful or negligent manner. See id.

(10) An employer may not insulate itself from vicarious liability merely by adopting a general policy proscribing bad behavior that would otherwise be actionable. Id.

(11) The proper vicarious liability inquiry is whether the employee was fulfilling his or her job functions at the time he or she engaged in the injurious conduct. See id.

(12) When a servant steps aside from the master’s business in order to effect some purpose of his own, the master is not liable. Id. at 54 (citing Kuehn v. White, 24 Wn.App. 274, 277, 600 P.2d 679 (1979)) (internal quotation marks omitted).

(13) Where an employee’s acts are directed toward personal sexual gratification, the employee’s conduct falls outside the scope of his or her employment. See id.

WORKERS’ COMPENSATION ANTI-RETALIATION STATUTE

(14) To establish a claim of unlawful workers’ compensation retaliation, a plaintiff must prove (1) that the plaintiff filed a claim, (2) that the employer thereafter discriminated against the plaintiff is some way, and (3) that the claim and the discrimination were causally connected. See id. at 50.

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July 2, 2021May 26, 2022

Martini v. The Boeing Company, 137 Wn.2d 357 (Wash. 1999)

This is a case summary of Martini v. The Boeing Company, 137 Wn.2d 357 (Wash. 1999). Subjects include the following:

» FAILURE TO PROVIDE REASONABLE ACCOMMODATIONS

» CONSTRUCTIVE DISCHARGE

» DAMAGES

» FRONT & BACK PAY

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**Martini v. The Boeing Company, 137 Wn.2d 357 (Wash. 1999)**

case summarY – 25 Facts:

[1] Boeing hired … Martini in … 1978.

[2] He worked primarily in the AWACS training organization, training Boeing customers (such as the U.S. and foreign governments) to work with the AWACS military aircraft.

[3] In January 1988 Martini was diagnosed as suffering from sleep apnea, following an incident when he fell asleep at the wheel of his car and drove off the road.

[4] If untreated, sleep apnea makes it difficult to breathe during sleep and results in deprivation of restful sleep and fatigue.

[5] Martini was prescribed a continuous positive air pressure (CPAP) machine which is worn during sleep to prevent the breathing cessation characteristic of sleep apnea.

[6] In 1989, after falling asleep and driving his car off the road for a second time, Martini asked his supervisor at Boeing for accommodations to help him manage his sleep apnea, including relocation and a flexible starting time.

[7] In June 1990 Martini was scheduled to conduct AWACS training … in England.

[8] He became concerned about the trip to England because he feared the long travel time … would exacerbate his sleep apnea, causing increased health problems.

[9] Martini therefore requested vacation in lieu of the trip; however, on the understanding that Boeing would transfer him to a new position and accommodate his health concerns upon his return, he agreed to go to England to conduct the scheduled training.

[10] Upon his return from England, Martini asked about being transferred to a new position and was told the personnel office was too busy to deal with his request.

[11] On the same day Martini was asked to prepare for a trip to France to conduct AWACS training courses scheduled to begin a few months later.

[12] Martini subsequently submitted a letter stating his intent to use his remaining leave and to terminate his employment with Boeing on August 20, 1990.

[13] On August 21, 1990, he signed papers terminating his employment.

[14] After leaving Boeing, Martini tried to find work, but was unsuccessful.

[15] Martini commenced the present action against Boeing, claiming damages for disability discrimination and constructive discharge contrary to RCW 49.60 and seeking reinstatement.

[16] The trial court granted partial summary judgment in favor of Boeing, dismissing Martini’s separate constructive discharge cause of action.

[17] The case then proceeded to jury trial on his disability discrimination claim.

[18] The trial court rejected jury instructions proposed by Boeing which would have prevented Martini from recovering back pay (lost wages calculated from the date the employee stopped work until the date of the verdict) or front pay (calculated from the date of the verdict for a reasonably certain period of time that does not exceed the likely duration of employment) as damages for discrimination.

[19] The jury was instructed, however, that no damages could be awarded unless proximately caused by the discriminatory act.

[20] By special verdict the jury found Boeing had discriminated against Martini and had engaged in a closely related series of discriminatory acts contrary to RCW 49.60.

[21] The jury awarded Martini the following damages for Boeing’s unlawful conduct: lost earnings ($205,356), lost future earnings ($480,932), pain, suffering, and emotional distress ($75,000), and past and future medical expenses ($15,000).

[22] The trial court then entered judgment on the jury verdict.

[23] Boeing appealed to Division One, claiming inter alia that, as Martini had not been constructively discharged, he could not be awarded damages for front and back pay.

[24] The Court of Appeals rejected the argument and affirmed the award of front and back pay.

[25] Boeing petitioned this court for review of the award of damages for front and back pay, and the petition was granted.

Martini v. The Boeing Company, 137 Wn.2d 357 (Wash. 1999) (internal citations omitted) (hyperlink added).

ISSUE #1: Whether a plaintiff with a successful discrimination claim under RCW 49.60.180(3) may recover front & back pay as part of damages, if the plaintiff establishes the same was proximately caused by an unlawful discrimination?

[1-1] WLAD MANDATES LIBERAL CONSTRUCTION: “[WLAD] … mandates liberal construction, RCW 49.60.020 … and … embodies a public policy of the highest priority.” Martini v. The Boeing Company, 137 Wn.2d 357, 364 (Wash. 1999) (internal quotation marks and citations omitted) (hyperlink added).

[1-2] WLAD UNFAIR PRACTICES (DISCHARGE & DISCRIMINATION): It is an unfair practice for any employer:

…

(2) To discharge or bar any person from employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person.

(3) To discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person: PROVIDED, That it shall not be an unfair practice for an employer to segregate washrooms or locker facilities on the basis of sex, or to base other terms and conditions of employment on the sex of employees where the commission by regulation or ruling in a particular instance has found the employment practice to be appropriate for the practical realization of equality of opportunity between the sexes.

Id. at 365 (citing RCW 49.60.180).

[1-3] UNFAIR PRACTICE TO DISCRIMINATE BASED ON DISABILITY: “One of the acts prohibited by the law against discrimination is discrimination by an employer against an employee because of ‘the presence of any sensory, mental, or physical disability.'” Id. at 366 (citing RCW 49.60.180(3)).

[1-4] UNFAIR PRACTICE TO DISCHARGE BECAUSE OF DISABILITY: “[A]n employer is also prohibited from discharging an employee because of inter alia ‘the presence of any sensory, mental, or physical disability.'” Id. (citing RCW 49.60.180(2)).

[1-5] WLAD DISCHARGE SECTION INCLUDES PROHIBITION AGAINST CONSTRUCTIVE DISCHARGE: “The subsection dealing with unlawful discharge of an employee [(i.e., RCW 49.60.180(2))] has been interpreted to include a prohibition against constructive discharge.” Martini, 137 Wn.2d at 366 (citing Bulaich v. AT & T Info. Sys., 113 Wash.2d 254, 259, 778 P.2d 1031 (1989)) (hyperlink added).

[1-6] CONSTRUCTIVE DISCHARGE DEFINED: “Constructive discharge occurs where an employer forces an employee to quit by making that employee’s work conditions intolerable.” Id. at fn. 3 (citing Barrett v. Weyerhaeuser Co. Severance Pay Plan, 40 Wash.App. 630, 631, 700 P.2d 338 (1985)).

“The doctrine of constructive discharge has been described by this court as requiring ‘a deliberate act of the employer creating the intolerable condition, without regard to the employer’s mental state as to the resulting consequence.” Id. (citing Bulaich, 113 Wash.2d at 261).

[1-7] DISCHARGE OR CONSTRUCTIVE DISCHARGE CAN RESULT FROM WRONGFUL DISCRIMINATION: “A wrongful act of discrimination under the statute does not necessarily lead to discharge of the employee, but it is possible that discharge or constructive discharge can result from such an act.” Id. at 366.

[1-8] DISTINCTION IN WLAD BETWEEN UNLAWFUL DISCRIMINATION & DISCHARGE MEANS DIFFERENT VIOLATIONS: “[S]ince … [WLAD] … deals separately with unlawful discrimination against an employee and unlawful discharge of an employee, it is clear that each of these acts amounts to a different violation of the law against discrimination and gives rise to a separate cause of action under the statute. This would be true even if the claim for discrimination and the claim for discharge arose from the employer’s same act.” Id.

[1-9] WLAD REMEDIES FOR UNFAIR PRACTICES: “[T]he law against discrimination expressly provides:

Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964….”

Id. at 366-67 (citing RCW 49.60.030(2)).

[1-10] WLAD PLAIN LANGUAGE SHOWS VICTIMS OF VIOLATIONS ENTITLED TO CLAIM FOR DAMAGES: “[The] … plain statutory language [of RCW 49.60.030(2)] makes it clear that a person who suffers from any violation of … [WLAD] shall have a claim for damages.” Martini, 137 Wn.2d at 367 (hyperlink added).

[1-11] VIOLATION OF RCW 49.60.180(3) ENTITLES VICTIMS TO CLAIM FOR DAMAGES UNDER RCW 49.60.030(2) INDEPENDENT OF WRONGFUL DISCHARGE OR CONSTRUCTIVE DISCHARGE: “A person who was discriminated against by an employer in violation of RCW 49.60.180(3) … [has] a claim for damages under RCW 49.60.030(2).” Martini, 137 Wn.2d at 367 (hyperlinks added). According to the Court:

This claim could be asserted regardless of whether or not the employee had been discharged or constructively discharged in violation of RCW 49.60.180(2). The statute clearly does not require that a discharge violating RCW 49.60.180(2) must occur as a condition precedent to a claim for damages under RCW 49.60.030(2). To the contrary, the statutory language unambiguously states that any violation of the statute will form a basis for a claim for damages.

Martini, 137 Wn.2d at 367 (hyperlinks added).

[1-12] RCW 49.60.030(2) MANDATES A CLAIM FOR ACTUAL DAMAGES: RCW 49.60.030(2) “unambiguously states that when any violation of the statute occurs, the person injured shall have a claim for ‘actual damages.'” Martini, 137 Wn.2d at 367.

[1-13] ACTUAL DAMAGES ARE SYNONYMOUS WITH COMPENSATORY DAMAGES: “‘Actual damages’ is a [t]erm used to denote the type of damage award as well as the nature of injury for which recovery is allowed; thus, actual damages flowing from injury in fact are to be distinguished from damages which are nominal, exemplary or punitive.” Id. (citing Rasor v. Retail Credit Co., 87 Wash.2d 516, 554 P.2d 1041, 1049).

“‘Actual damages’ are synonymous with compensatory damages.” Id. (citing Black’s Law Dictionary 35 (6th ed.1990)). “As the dictionary definition notes, Washington courts have interpreted the term ‘actual damages’ in this manner.” Id. at 367-68 (internal citations omitted).

[1-14] RCW 49.60.030(2) MANDATES FULL COMPENSATORY DAMAGES FOR VIOLATIONS OF RCW 49.60.180(3): RCW 49.60.030(2) “provides a person who has been discriminated against in violation of RCW 49.60.180(3) with a remedy for full compensatory damages, excluding only nominal, exemplary or punitive damages.” Martini, 137 Wn.2d at 368 (hyperlink added).

[1-15] FRONT & BACK PAY AWARD UNDER 49.60.180(3) NOT CONTINGENT UPON SEPARATE & SUCCESSFUL WRONGFUL DISCHARGE CLAIM: “T]here is nothing in the plain language of the statute which conditions an award of damages for front or back pay for a violation of RCW 49.60.180(3) upon a separate and successful claim for wrongful discharge under RCW 49.60.180(2).” Martini, 137 Wn.2d at 368 (hyperlinks added).

[1-16] WLAD DOES NOT LIMITED TYPE OF COMPENSATION FOR VIOLATION OF RCW 49.60.180(3): WLAD “does not in any way limit the type of compensation that can be claimed for discrimination violating RCW 49.60.180(3), but the usual rules which govern the elements of damage for which compensation may be awarded apply.” Martini, 137 Wn.2d at 368.

[1-17] PROXIMATE CAUSE & MITIGATION LIMIT FRONT AND BACK PAY IF NO CONSTRUCTIVE DISCHARGE: “The determinations of both proximate cause and mitigation are factual matters for the jury, operating to limit front and back pay awards in cases where there has been discrimination but no finding of constructive discharge.” Id. at 368.

[1-18] WLAD PERMITS FRONT & BACK PAY: “Washington’s law against discrimination (RCW 49.60) permits recovery of front and back pay for a successful discrimination claim when these damages are proximately caused by unlawful discrimination.” Martini, 137 Wn.2d at 364 (hyperlink added).

[1-19] CONSTRUCTIVE DISCHARGE NOT REQUIRED FOR FRONT & BACK PAY UNDER RCW 49.60.180(3): “A Plaintiff with a successful disability discrimination claim under RCW 49.60.180(3) is not required to prove a separate claim of constructive discharge in order to obtain damages for front and back pay.” Martini, 137 Wn.2d at 363.

[1-20] BOEING’S ANALOGOUS CASES: In this case, Boeing argued that “damages for front and back pay cannot be awarded for an act of discrimination in violation of RCW 49.60.180(3) unless there is a separate, successful claim for discharge or constructive discharge under RCW 49.60.180(2).” Martini, 137 Wn.2d at 363.

Boeing further argued that the Court in Binkley v. City of Tacoma, 114 Wn.2d 373, 787 P.2d 1366 (1990), and Glasgow v. Georgia Pacific Corp., 103 Wash.2d 401, 693 P.2d 708 (1985), applied Boeing’s proposed rule. Martini, 137 Wn.2d at 369.

However, the Court distinguished both Binkley and Glasgow from the instant case.

[1-21] BINKLEY v. CITY OF TACOMA: In Binkley, “an employee claimed violation of his free speech rights and constructive discharge.” Martini, 137 Wn.2d at 369. The employee won on the free speech issue but lost on the constructive discharge claim.

This Court then “vacated the jury verdict on the free speech issue and affirmed on the constructive discharge claim” thereby leaving the employee with no successful claims for relief. See id.

Nevertheless, Boeing relied “on a statement in Binkley that ‘back pay could have been awarded only if Binkley was constructively discharged.'” Martini, 137 Wn.2d at 369 (internal citation omitted). But the Court distinguished Binkley declaring:

The plaintiff was unsuccessful in both his constitutional claim […] and his claim for constructive discharge. He therefore had no basis for an entitlement to damages […] the court’s statement about the damages that the plaintiff might have claimed if the substantive issues had been decided differently have no bearing on whether loss of pay can be awarded in a wrongful discrimination suit.

Martini, 137 Wn.2d at 369 (emphasis added).

The Court also distinguished Binkley from Martini in that “Binkley involved a free speech issue and did not involve a claim under RCW 49.60.” Martini, 137 Wn.2d at 369. The Court then evaluated Glasgow.

[1-22] GLASGOW v. GEORGIA-PACIFIC CORP: In Glasgow, the Court “set out the test under RCW 49.60.180(3) for discrimination due to sexual harassment, finding that the plaintiffs suffered discrimination in violation of the statute and affirming an award of damages for ‘physical, emotional and mental suffering.'” Martini, 137 Wn.2d at 369 (internal citation omitted).

Boeing supported its argument by relying on the Court’s statement in Glasgow that “the evidence in this case was not sufficient to convince the trial court, as the trier of fact, that either of the employees’ resignations constituted a constructive discharge such as to justify additional damages on account thereof.” Martini, 137 Wn.2d at 369-70 (internal citation omitted).

However the Court distinguished Glasgow, stating:

There is nothing in Glasgow which suggests a different kind of damages can be claimed for a constructive discharge violation of the law against discrimination as opposed to a discrimination violation of the statute. At best, Glasgow simply suggests that a different amount of damages might be awarded in a case where there was constructive discharge (the suggestion being that where an employee is constructively discharged, higher damages may be appropriate).

Martini, 137 Wn.2d at 370.

[1-23] MARTINI’S ANALOGOUS CASE: In response to Boeing’s argument, Martini, cited Dean v. Municipality of Metro. Seattle-Metro, 104 Wash.2d 627, 708 P.2d 393 (1985).

In Dean, the Court upheld an award of emotional distress damages, stating:

Under RCW 49.60, proof of discrimination results in a finding of liability. The plaintiff, once having proved discrimination, is only required to offer proof of actual anguish or emotional distress in order to have those damages included in recoverable costs pursuant to RCW 49.60. The damages result from the injury, the discrimination.

Martini, 137 Wn.2d at 370-71.

The Court then noted both that “in Dean the instruction to the jury to award damages for lost earnings (with interest thereon) was not challenged by the parties and was affirmed by this court […] and […] the reasoning in Dean suggests that damages which are proximately caused by the wrongful action may be claimed.” Martini, 137 Wn.2d at 370-71 (emphasis added).

Ultimately, the Court found that “[a]lthough not directly controlling, Dean is in contradiction to the argument made by Boeing that in certain situations a victim of discrimination in violation of RCW 49.60.180(3) may not claim front or back pay.” Martini, 137 Wn.2d at 371.

[1-24] THE COURT’S ANALOGOUS CASE: The Court eventually cited Curtis v. Security Bank, 69 Wash.App. 12, 847 P.2d 507 (1993), and found that it indicated “Washington courts have been willing to affirm awards of damages for front and back pay under RCW 49.60 in cases where there has been no constructive discharge.” Martini, 137 Wn.2d at 372.

In Curtis, a bank employee developed a hip condition and was voluntarily laid off. Martini, 137 Wn.2d at 371. She sued her employer for failing to accommodate her disability in violation of WLAD. Id. at 371-72. “The trial court entered judgment in the employee’s favor, awarding damages for front and back pay. The employer appealed and the award of damages was affirmed.” Id. at 372. There was no separate claim for either discharge or constructive discharge.

The Court ultimately found “that the case law interpreting RCW 49.60 does not support Boeing’s argument. Binkley and Glasgow are not controlling and Dean is clearly inconsistent with the position advocated by Boeing.” Martini, 137 Wn.2d at 372.

[1-25] WLAD PROVIDES A REMEDY OF ACTUAL OR COMPENSATORY DAMAGES: The Court concluded WLADs plain language provides “a remedy of actual (or compensatory) damages for an employee who has been injured in violation of RCW 49.60.” Martini, 137 Wn.2d at 377.

[1-26] WLAD DOES NOT PREDICATE BACK PAY UPON SEPARATE CONSTRUCTIVE DISCHARGE FINDING: Moreover, “[t]he statute does not predicate an award of back pay for discrimination upon a separate finding of constructive discharge.” Id. at 377-78.

And “Washington case law, in particular Dean, supports the proposition that back pay may be awarded for a discriminatory act in violation of RCW 49.60.180(3) even if there is no finding of constructive discharge, so long as the damages were proximately caused by the wrongful act.” Martini, 137 Wn.2d at 378.

[1-27] COURT OF APPEALS AFFIRMED: The Court affirmed the Court of Appeals.

ISSUE #2: Does Title VII and Washington’s law against discrimination have similar remedy provisions such that Title VII case law is applicable to the resolution of this case?

[2-1] WLAD IS BROADER IN SCOPE: “[T]he scope of Title VII is not as broad as RCW 49.60 since Title VII does not protect against discrimination because of marital status, age or disability.” Martini, 137 Wn.2d at 372. (internal citations omitted) (hyperlink added).

Moreover, Title VII does not “contain a direction for liberal interpretation, such as is the mandate in Washington’s law against discrimination.” Id. at 372-73 (citing RCW 49.60.020) (hyperlink added).

Ultimately, “[t]he remedies section of Washington’s law against discrimination is … radically different from the remedies section of Title VII.” Id. at 374.

[2-2] TITLE VII REMEDIES PROVISION: The remedies provision for Title VII is as follows:

If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay … or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.

Id. at 373 (citing 42 U.S.C. § 2000e-5(g)(1)) (hyperlink added).

[2-3] TITLE VII COMPENSATORY DAMAGES EXCLUDE BACK PAY: In 1991, “Title VII was amended … to allow for recovery of compensatory and punitive damages in addition to the available equitable remedies.” Id. at 373 (citing 42 U.S.C. § 1981a(a)) (hyperlinks added).

But “compensatory damages were so defined as to exclude an award of back pay:

Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964 [42 U.S.C. § 2000e-5(g) ].

Martini, 137 Wn.2d at 373 (citing 42 U.S.C. § 1981a(b)(2)) (hyperlink added).

Thus, “Title VII specifically mentions back pay but excludes such an award from compensatory damages, leaving back pay as primarily an equitable device.” Id. at 375 (hyperlink added).

[2-4] TITLE VII BACK PAY IS AN EQUITABLE REMEDY: “Title VII … explicitly regards back pay as an equitable remedy awarded under 42 U.S.C. § 2000e-5(g)(1) in cases where reinstatement is appropriate.” Martini, 137 Wn.2d at 373 (hyperlink added).

“Federal courts have interpreted Title VII in this way, limiting the circumstances in which back pay may be awarded so as to be consistent with the statutory scheme to provide primarily equitable relief.” Id. at 373-74 (hyperlink added).

To support this finding, the Court referenced a Seventh Circuit case as follows:

The Seventh Circuit noted in Brooms v. Regal Tube Co., 881 F.2d 412, 423 (7th Cir.1989): Title VII only provides for equitable relief; a district court cannot award damages, either punitive or compensatory, to redress a violation of Title VII. Consequently, a district court may award back pay to a plaintiff only as an equitable remedy, i.e., if a plaintiff can demonstrate that the defendant discharged him or her, either actually or constructively.

Martini, 137 Wn.2d at 374 (hyperlinks added).

[2-5] WLAD REMEDIES PROVISION: “Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including a reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964….” Martini, 137 Wn.2d at 374 (citing RCW 49.60.030(2)) (emphasis in original) (hyperlink added).

[2-6] WLAD COMPENSATORY DAMAGES INCLUDE BACK PAY: “Although RCW 49.60.030(2) also contemplates equitable remedies, such as power to enjoin future violations and to provide for any of the Title VII remedies, the provision very explicitly allows for recovery of ‘actual damages’ which may be awarded as either a sole remedy or in conjunction with an equitable remedy such as an injunction.” Martini, 137 Wn.2d at 374 (emphasis added).

The Court determined that “‘actual damages’ include full compensatory damages.” Id. (citing Rasor v. Retail Credit Co., 87 Wash.2d 516, 554 P.2d 1041 (1976)) (emphasis added).

Thus, in contrast to Title VII damages, “Washington’s law against discrimination provides for a general award of “actual” (or compensatory) damages, with no limitation, qualification, or indication that back pay should be excluded.” Id. at 375.

[2-7] THE LEGISLATIVE COMMAND TO AWARD DAMAGES IS STRONGER UNDER WLAD THAN TITLE VII: “The use of the word “may” in the remedies provision of Title VII makes it clear that an award of back pay for a breach of Title VII is not mandated by the statute.” Id. at 375 (citing 42 U.S.C. § 2000e-5(g)(1) (stating that when the statute has been violated, the court “may” order affirmative action which “may” include reinstatement with or without back pay)) (hyperlinks added).

“In contrast, Washington’s law against discrimination is more categorical, mandating that a victim of a violation of the statute ‘shall have a civil action … to recover the actual damages.'” Id. (citing RCW 49.60.030(2))(emphasis in original) (hyperlink added).

“The legislative command to award damages is therefore stronger in Washington’s statute than in Title VII.” Id. (hyperlink added).

[2-8] SCOPE OF WLAD VS. TITLE VII: In this case, the Court first determined that the scope of Title VII is not as broad as that in WLAD, because (1) Title VII does not cover marital status, age, or disability as a protected class; and (2) Title VII does not contain a “direction for liberal interpretation” unlike WLAD (RCW 49.60.020). Martini, 137 Wn.2d at 372-73.

Consequently, it compared damage provisions.

[2-9] COMPARISON OF DAMAGE PROVISIONS: The Court determined that Title VII contained damage provisions that were more limited than WLADs.

Particularly, the Court found that Title VII excludes back pay from compensatory damages and regards it as “an equitable remedy awarded under 42 U.S.C. § 2000e-5(g)(1) in cases where reinstatement is appropriate.” Martini, 137 Wn.2d at 373.

In contrast, WLAD “provides for a general award of ‘actual’ (or compensatory) damages, with no limitation, qualification, or indication that back pay should be excluded.” Id. at 375.

The Court further determined that “[t]he legislative command to award damages is … stronger in Washington’s statute than in Title VII,” because Title VII uses the term “may” in its remedies provision whereas WLAD uses the categorical term “shall.” Id.

[2-10] TITLE VII CASE LAW IS INAPPLICABLE TO RESOLUTION OF THIS CASE: The Court concluded that “[s]ince the remedies provisions of Title VII and Washington’s law against discrimination are so different, the Title VII cases cited by Boeing barring an award of back pay absent a finding of constructive discharge are clearly distinguishable from the present case which involves a violation of state law.” Martini, 137 Wn.2d at 375.

Accordingly, the Court found that “[t]he Title VII case law cited by Boeing must be distinguished because the Title VII damages provision differs markedly from Washington’s law against discrimination.” Id. at 377.

ISSUE #3: Will prohibiting an award of back or front pay for wrongful discrimination absent a successful constructive discharge claim further the WLAD policy?

[3-1] TITLE VII POLICY: According to the Ninth Circuit, “[t]he purposes of Title VII are best served when parties, where possible, attack discrimination within the context of their existing employment relationships…. Restricting backpay awards encourages the employee to work with supervisors within the existing job setting and employment relationship in an effort to overcome resistance within that workplace and to eradicate the discrimination.” Id. at 376 (citing Thorne v. City of El Segundo, 802 F.2d 1131, 1134 (9th Cir.1986)) (hyperlink added).

[3-2] WLAD POLICY IF FURTHERED BY ALLOWING BACK PAY DAMAGES FOR WLAD VIOLATIONS: “[A]llowing the possibility of damages for back pay where an employer has violated the law against discrimination provides an incentive for employers to work with employees in the workplace to eradicate discrimination.” Id. at 377.

[3-3] THE DOCTRINE OF PROXIMATE CAUSE STILL PROTECTS THE EMPLOYER FROM UNWARRANTED CLAIMS OF BACK PAY DAMAGES UNDER WLAD: “[T]he doctrine of proximate cause operates to prevent an employee from claiming back pay where the termination of employment was not caused by the wrongful act.” Id.

[3-4] TITLE VII POLICY IS TOO LIMITED FOR WLAD: The Court considered the Defendant’s policy argument: “[p]rohibiting a back pay award for violation of RCW 49.60.180(3) in cases where there is no constructive discharge would further the aims of Washington’s law against discrimination.” In so doing, the Court evaluated the policy of Title VII according to Ninth Circuit case law — Thorne v. City of El Segundo, 802 F.2d 1131, 1134 (9th Cir.1986), supra.

But the Court reasoned:

[T]his argument does not take into account the burden litigation places upon plaintiffs and the inherent disincentive to quit and litigate rather than to stay on the job. Plaintiffs who leave their place of employment potentially face long and difficult battles to obtain damages for discrimination–even if they can prove that they have been discriminated against and can prove the discrimination was the proximate cause of lost pay, it could still be years Before damages are obtained.

Martini, 137 Wn.2d at 376.

The Court then applied its reasoning to the present case:

“Martini left Boeing in 1990, and his case is still in litigation eight years later. A rational employee is unlikely to decide that quitting and suing is easier than attempting to resolve a dispute in the workplace.”

Id. at 376.

[3-5] BACK PAY POLICY: “[A]llowing the possibility of damages for back pay where an employer has violated the law against discrimination provides an incentive for employers to work with employees in the workplace to eradicate discrimination.” Id. at 377.

[3-6] PROXIMATE CAUSE AS A REGULATOR: And “the doctrine of proximate cause operates to prevent an employee from claiming back pay where the termination of employment was not caused by the wrongful act.” Id. at 377.

[3-7] PROHIBITING WLAD BACK/FRONT PAY ABSENT SUCCESSFUL CONSTRUCTIVE DISCHARGE CLAIM DOES NOT FURTHER WLAD POLICY: The Court concluded that “[p]rohibiting an award of back or front pay for wrongful discrimination absent a successful constructive discharge claim would not further the policy behind Washington’s law against discrimination.” Id. at 376.

[3-8] ALLOWING WLAD BACK PAY INCENTIVISES EMPLOYERS AND EMPLOYEES TO ERADICATE DISCRIMINATION: Moreover, “allowing the possibility of damages for back pay where an employer has violated the law against discrimination provides an incentive for employers to work with employees in the workplace to eradicate discrimination.” Id.

[3-9] MADATE OF LIBERAL INTERPRETATION PROTECTS WLAD REMEDIES:“[T]he law against discrimination provides a remedy for the employee who had been discriminated against and the liberal interpretation provision of the statute operates to protect that remedy. Id. at 376-77 (citing RCW 49.60.020).

[3-10] DOCTRINE OF PROXIMATE CAUSE ACTS AS A REGULATOR: And, “[i]n any event, the doctrine of proximate cause operates to prevent an employee from claiming back pay where the termination of employment was not caused by the wrongful act.” Id. at 377.

ISSUE #4: Should the Court award attorney fees to Martini for responding to this appeal?

[4-1] RAP 18.1(a): “If applicable law grants to a party the right to recover reasonable attorney fees or expenses on review, the party must request the fees or expenses as provided in this rule…. ” Id. at 377 (referencing RAP 18.1(a)).

[4-2] WLAD: “Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including a reasonable attorneys’ fees ….” Id.

[4-3] In this case, the Court found that “[i]n light of our rejection of Boeing’s arguments, we find Martini should be awarded attorney fees and costs on appeal in addition to the attorney fees and costs awarded by the trial court.” Id. at 377.

[4-4] The Court awarded “Martini attorney fees on appeal and remand[ed] to the trial court to determine the amount of attorney fees to be awarded.” Id. at 378.

NOTABLES & IMPLICATIONS:

FRONT AND BACK PAY: LIMITATIONS

(1) “The determinations of both proximate cause and mitigation are factual matters for the jury, operating to limit front and back pay awards in cases where there has been discrimination but no finding of constructive discharge.” Id. at 368.

TITLE VII AND WLAD REMEDIES PROVISIONS ARE SIGNIFICANTLY DIFFERENT

(2) “Title VII and Washington’s law against discrimination have significantly different remedies provisions … [.]” Id. at 372. “[T]he scope of Title VII is not as broad as RCW 49.60 since Title VII does not protect against discrimination because of marital status, age or disability.” Id. “Nor does Title VII contain a direction for liberal interpretation, such as is the mandate in Washington’s law against discrimination.” Id. at 373 (internal citations omitted). Moreover, the Court declared:

The remedies section of Washington’s law against discrimination is therefore radically different from the remedies section of Title VII. Title VII specifically mentions back pay but excludes such an award from compensatory damages, leaving back pay as primarily an equitable device. But in contrast Washington’s law against discrimination provides for a general award of “actual” (or compensatory) damages, with no limitation, qualification, or indication that back pay should be excluded.

Id. at 374-75.

WLAD POLICY (BACK PAY)

(3) “[A]llowing the possibility of damages for back pay where an employer has violated the law against discrimination provides an incentive for employers to work with employees in the workplace to eradicate discrimination.” Id. at 376.

(4) “Furthermore, the law against discrimination provides a remedy for the employee who had been discriminated against and the liberal interpretation provision of the statute operates to protect that remedy.” Id. at 376-77 (citing RCW 49.60.020).

(5) “In any event, the doctrine of proximate cause operates to prevent an employee from claiming back pay where the termination of employment was not caused by the wrongful act.” Id. at 377.

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July 1, 2021May 26, 2022

Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401 (Wash. 1985)

This is a case summary of Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401 (Wash. 1985). Primary subjects include the following:

» SEXUAL HARASSMENT (HOSTILE WORK ENVIRONMENT)

» IMPUTING HARASSMENT TO EMPLOYER

» CONSTRUCTIVE DISCHARGE

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**Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401 (Wash. 1985)**

CASE SUMMARY – 16 Facts:

[1] This case of first impression in this state involves sexual harassment at the work place.

[2] Two female employees brought suit against their employer, Georgia-Pacific Corporation, alleging sex discrimination in violation of RCW 49.60 and the tort of outrage [also known as intentional infliction of emotional distress].

[3] From October 1979 until January 1982, … a male co-worker, on several occasions ‘would place his hands on [one of the plaintiff’s] hips and rub his crotch across her back side as he was passing[,] … [stared] at her breasts[,] … placed his hand on her right breast without any welcome or invitation … and approach[ed] her from behind and grabbing her buttocks with his hands.’

[4] As early as November 1979 the plant manager knew this male employee was ‘using abusive language around female employees’ and had ‘touched or fondled’ this plaintiff and another female employee ‘in an unwanted sexual way.’ No corrective or disciplinary action was taken.

[5] Complaints of the co-worker’s ‘other intimidating behavior’ toward this plaintiff were lodged again in mid-1981, this time to a plant superintendent who acknowledged that other female employees, including the other plaintiff in this action, were also having problems with this male co-worker.

[6] Shortly thereafter, this plaintiff began to hear threats and complaints concerning her job performance purportedly coming from the plant manager.

[7] The other plaintiff had been working for the employer for only a month when the same male co-worker began to press himself against her in the same manner as he passed by her.

[8] A complaint was lodged with the plaint superintendent.

[9] The male co-worker would also stare at her ‘in a sexually intimidating way, follow her about the plant, in such a way that it intimidated her, [and] interfered with her work performance.’

[10] She tried to avoid him and informed the plant manager ‘who did nothing.’ She and yet another female employee confronted the plant manager about this ‘continued sexual harassment.’

[11] The male co-worker was finally transferred to another shift, but his course of intimidation continued. In addition, other employees, including a supervisor, acted ‘in an intimidating fashion’ toward this plaintiff because of her complaints.

[12] Not until February 1982 was the male co-worker given a 3-day suspension ‘based on his prior acts of sexual harassment.’

[13] One of the plaintiffs suffered ‘severe emotional anguish and distress demonstrated by physical symptoms’ of various kinds. She resigned in December 1981 after working less than 9 months.

[14] The other plaintiff was ’emotionally and psychologically injured’ and likewise demonstrated physical manifestations of ‘severe emotional distress.’ She resigned in October 1982.

[15] The trial court found that as a result of the foregoing acts and inactions, along with other similar ones, a hostile and intimidating work environment was created and it was this which proximately caused severe emotional distress to the plaintiffs.

[16] The trial court also found that these facts constituted the tort of outrage but that they did not permit a finding that either of the plaintiffs were constructively discharged from their jobs.

Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401 (Wash. 1985) (internal citations omitted) (hyperlink added).

ISSUE #1: Did the trial court err in concluding that the employer was liable for sexual discrimination in violation of RCW 49.60?

[1-1] PROMPT & ADEQUATE CORRECTIVE ACTION: Under RCW 49.60, “an employer may ordinarily avoid liability for sexual harassment by taking prompt and adequate corrective action when it learns that an employee is being sexually harassed.” Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 408 (Wash. 1985) (hyperlink added).

[1-2] HOSTILE WORK ENVIRONMENT: “To establish a work environment sexual harassment case … an employee must prove the existence of the following [four] elements[ ][:]” (1) the harassment was unwelcome; (2) the harassment was because of sex; (3) the harassment affected the terms or conditions of employment; and (4) the harassment is imputed to the employer. Id. at 406-07 (footnote omitted).

[1-2a] THE HARASSMENT WAS UNWELCOME: “In order to constitute harassment, the complained of conduct must be unwelcome in the sense that the plaintiff-employee did not solicit or incite it, and in the further sense that the employee regarded the conduct as undesirable or offensive.” Id. at 406.

[1-2b] THE HARASSMENT WAS BECAUSE OF SEX: “The question to be answered here is: would the employee have been singled out and caused to suffer the harassment if the employee had been of a different sex? This statutory criterion requires that the gender of the plaintiff-employee be the motivating factor for the unlawful discrimination.” Id.

[1-2c] THE HARASSMENT AFFECTED THE TERMS OR CONDITIONS OF EMPLOYMENT: “Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id. “The harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id.

TOTALITY OF THE CIRCUMSTANCES TEST: “Whether the harassment at the workplace is sufficiently severe and persistent to seriously affect the emotional or psychological well being of an employee is a question to be determined with regard to the totality of the circumstances.” Id. at 406-07

[1-2d] THE HARASSMENT IS IMPUTED TO THE EMPLOYER:

WHERE OWNER, MANAGER, PARTNER, OR CORPORATE OFFICER HARASSES: “Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof.” Id. at 407.

WHERE SUPERVISORS OR CO-WORKERS HARASS: “To hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer[:]

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

(b) failed to take reasonably prompt and adequate corrective action.

Id. (emphasis and paragraph formatting added).

SHOWN THROUGH COMPLAINTS/PERVASIVENESS AND INSUFFICIENT REMEDIAL ACTION: “This may be shown by proving[:]

(a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the work place as to create an inference of the employer’s knowledge or constructive knowledge of it and

(b) that the employer’s remedial action was not of such nature as to have been reasonably calculated to end the harassment.

Id. (paragraph formatting and emphasis added).

[1-3] ONLY FOURTH ELEMENT (HARSSMENT IMPUTED TO EMPLOYER) WAS AT ISSUE: The Court only addressed the fourth element by reviewing the trial court’s finding as follows:

In the case at bar, [the employer] knew or should have known that [the male co-worker’s] unwelcome sexual advances and other verbal or physical conduct of his [sic] sexual nature were unreasonably interfering with [the plaintiffs’] work performance and/or created an intimidating, hostile or offensive working environment. Further, no reasonable immediate or appropriate corrective action was taken to remedy the situation.

Id. at 407 (citing Trial Court Finding of fact 54). The Court determined that “this finding is amply supported by the record; it is also unchallenged on appeal.”

[1-4] PLAINTIFFS SUBJECTED TO HOSTILE WORK ENVIRONMENT: The Court held that “the plaintiff-employees established that they were subjected to uninvited sexual harassment by a co-worker with the actual knowledge of two supervisory personnel who undertook no reasonably prompt and adequate remedial measures to alleviate the resulting hostile and intimidating work environment in which the employees found themselves.” Id. at 404.

The Court further held that “the recovery of damages by the plaintiff-employees for the mental and emotional suffering they sustained was an appropriate remedy for such unlawful sexual discrimination.” Id.

ISSUE #2: Does a determination of unlawful discrimination support Plaintiffs’ claims of constructive discharge from employment?

[2-1] UNLAWFUL DISCHARGE ALONE IS INSUFFICIENT TO SHOW CONSTRUCTIVE DISCHARGE: The “existence of unlawful discharge alone is insufficient to support a finding of constructive discharge from employment.” Id. at 408 (internal citations omitted).

[2-2] INSUFFICIENT EVIDENCE: The Court found that “the evidence in this case was not sufficient to convince the trial court, as the trier of fact, that either of the employees’ resignations constituted a constructive discharge such as to justify additional damages on account thereof.” Id.

[2-3] APPELLATE COURT AGREED WITH TRIAL COURT: The Court agreed with the trial court and found “that the existence of unlawful discrimination alone is insufficient to support a finding of constructive discharge from employment. Id. at 408 (referencing generally, Henson v. Dundee, 682 F.2d 897, 907-08 (11th Cir. 1982); Nolan v. Cleland, 686 F.2d 806, 812-13 (9th Cir.1982); see also, Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir.1981)).

Accordingly, the Court held that “on the record Before us we cannot conclude this was error” for the trial court to hold that the facts did not permit a finding that either of the plaintiffs were constructively discharged from their jobs. Id.

NOTABLES & IMPLICATIONS:

POLICY

(1) “Sexual harassment as a working condition unfairly handicaps an employee against whom it is directed in his or her work performance and as such is a barrier to sexual equality in the workplace.” Id. at 405.

(2) “[W]e view the essential purpose of [the sexual harassment cause of action] to be preventative in nature.” See id. at 407-08 (referencing Bundy v. Jackson, 641 F.2d 934, 945 (D.C.Cir.1981)).

(3) “[T]he Act does not impose a duty on the employer to maintain a pristine working environment. Rather, it imposes a duty on the employer to take prompt and appropriate action when it knows or should know of co-employees’ conduct in the workplace amounting to sexual harassment.” Id. at 406 (citing Continental Can Co. v. Minnesota, 297 N.W.2d 241, 249 (Minn.1980)).

QUID PRO QUO SEXUAL HARASSMENT

(4) Quid Pro Quo sexual harassment is “a situation where an employer requires sexual consideration from an employee as a quid pro quo for job benefits.” Id. at 405.

TITLE VII

(5) “Interpretations of Title VII, § 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (1982) are not binding on this court, but are instructive and lend support to our decision herein.” Id. at 409, n.2 (referencing Davis v. Department of Labor & Indus., 94 Wash.2d 119, 615 P.2d 1279 (1980)).

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June 29, 2021May 26, 2022

Blackburn v. Department of Social and Health Services, 186 Wn.2d 250 (Wash. 2016)

This is a case summary of Blackburn v. Department of Social and Health Services, 186 Wn.2d 250 (Wash. 2016). Subjects include the following:

» SUBSTANTIAL EVIDENCE STANDARD

» DISPARATE TREATMENT

» HOSTILE WORK ENVIRONMENT

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**Blackburn v. Department of Social and Health Services, 186 Wn.2d 250 (Wash. 2016)**

CASE SUMMARY – 5 Facts:

[1] Nine employees (Employees) of Western State Hospital (WSH) assert that their employer has illegally taken race into account when making staffing decisions in response to patients’ race-based threats or demands.

[2] WSH is a division of the Department of Social and Health Services. [The Court] … refer[s] to the respondents collectively as the ‘State’ throughout this opinion.

[3] After a six-day bench trial, the trial court found that WSH managers issued a staffing directive that prevented African-American staff from working with a violent patient making threats over the course of one weekend in 2011.

[4] Despite this race-based staffing directive, the trial court entered a verdict for the State and dismissed Employees’ employment discrimination claims.

[5] [The Supreme Court] … reverse[d] the trial court and [held] … that the State’s racially discriminatory staffing directive violates the Washington Law Against Discrimination (WLAD), RCW 49.60.180(3).

Blackburn v. Department of Social and Health Services, 186 Wn.2d 250 (Wash. 2016) (internal citations omitted) (hyperlink added).

ISSUE #1: Were the Plaintiffs’ challenges to the trial court’s factual findings sufficient to disturb the trial court’s factual findings under the substantial evidence standard?

[1-1] STATUTORY CONSTRUCTION (PRESUMPTION OF PROSPECTIVE APPLICATION): The Court reviews findings of fact for substantial evidence. Blackburn v. Department of Social and Health Services,, 186 Wn.2d 250, 256 (Wash. 2016) (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 352, 172 P.3d 688 (2007)). The party challenging the trial court’s factual findings had the burden to prove they are not supported by substantial evidence. Id. (referencing Fisher Props., Inc., v. Arden-Mayfair, Inc., 115 Wn.2d 364, 369, 798 P.2d 799 (1990)).

[1-2] MEANING OF SUBSTANTIAL EVIDENCE: Substantial evidence means evidence that is sufficient to persuade a rational, fair-minded person of the truth of the finding. Id. (citing Hegwine, 162 Wn.2d at 353) (internal citation and quotation marks omitted).

[1-3] SUBSTITUTE JUDGMENT: As long as the substantial evidence standard is met a reviewing court will not substitute its judgment for that of the trial court even though it might have resolved a factual dispute differently. Id. (citing Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879-80, 73 P.3d 369 (2003)) (internal quotation marks omitted).

[1-4] DE NOVO REVIEW: The Court reviews conclusions of law de novo. Id. (citing Robel v. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002); Hegwine, 162 Wn.2d at 348, 353).
.

[1-5] DURATION AND FREQUENCY OF STATE’S PRACTICES: In this case, the Court explained that Employees challenged various factual findings by the trial court generally related to the duration and frequency of the State’s race-based staffing practices.

One staffing directive involved a communication that “no staff members of a certain race were to be assigned to a particular ward over the course of one weekend.” Significantly, the trial had found that this racial staffing directive lasted only one weekend and that the Employees were not subjected to similar staffing incidents.

[1-6] OTHER STAFFING DECISIONS NOT SUBSTANTIALLY SIMILAR TO RACIAL STAFFING DIRECTIVE: Accordingly, the Supreme Court found that the trial court “weighed the witnesses’ testimony and credibility and implicitly determined that other staffing decisions described were not substantially similar to the” subject racial staffing directive.

[1-7] PLAINTIFF’S CHALLENGES NOT SUFFICIENT TO DISTURB TRIAL COURT’S FINDINGS: The Court held that substantial evidence supported the trial court’s factual findings, and based on the Court’s review of the record, the Plaintiffs’ challenges were not sufficient to disturb the trial court’s factual findings pursuant to the substantial evidence test.

ISSUE #2: Did the employees prevail on their disparate treatment claim?

[2-1] WLAD GENERALLY: “The WLAD makes it unlawful for an employer ‘[t]o discriminate against any person in compensation or in other terms or conditions of employment because of … race.” Id. at 258 (citing RCW 49.60.180(3)).

[2-2] DISPARATE TREATMENT: Disparate treatment “is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Id. (citing Shannon v. Pay ‘N Save Corp., 104 Wn.2d 722, 726, 709 P.2d 799 (1985) (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 53 L.Ed.2d 396 (1977))).

[2-3] VALID JUSTIFICATION: “When an employee makes out a claim of disparate treatment under WLAD, like Title VII, the employer’s action is unlawful unless the employer has a valid justification.” Id. at 258-59 (referencing, e.g., Franklin County Sheriff’s Office v. Sellers, 97 Wn.2d 317, 328-29, 646 P.2d 113 (1982); Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 132 (3rd. Cir. 1996); Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 199-200, 111 S. Ct. 1196, 113 L.Ed.2d 158 (1991)) (internal citation parenthetical phrases omitted).

The employer’s valid justification is more commonly known as a bona fide occupational qualification (BFOQ).

[2-4] BONA FIDE OCCUPATIONAL QUALIFICATION (BFOQ): “RCW 49.60.180 allows employers to take protected characteristics into account in limited circumstances.” Id. at 259-260 (referencing RCW 49.60.180(1) (prohibition against discrimination in hiring does not apply if based on a BFOQ), (3) (permitting segregated washrooms and locker facilities on the basis of sex and allowing the Human Rights Commission to issue regulations or rulings” for the practical realization of equality of opportunity between the sexes”), (4) (prohibition against discrimination in advertising, job applications, and preemployment inquiries does not apply if based on a BFOQ)).

[2-5] THE BFOQ TEST: “In order to satisfy the BFOQ standard, the employer must prove (1) that the protected characteristic is essential to job purposes or (2) that all or substantially all persons with the disqualifying characteristic would be unable to efficiently perform the job.” Id. (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 358, 172 P.3d 688 (2007)).

[2-6] DISPARATE TREATMENT: In this case, the trial court held that the Employees’ failed to establish a disparate treatment claim notwithstanding the subject staffing orders, because the orders were likely an overreaction.

The Supreme Court disagreed finding that “this does not change the resulting discriminatory nature of the staffing decisions … [t]hese overt race-based directives affected staffing decisions in such a manner as to constitute discrimination in ‘terms or conditions of employment becuase of … race’ in violation of RCW 49.60.180(3).” Id.

[2-7] BFOQ DEFENSE: Moreover, the Supreme Court found that the State had no valid legal justification for its determination; finding that none of the statutory exceptions under RCW 49.60.180 applied because they are based on sex, not race, and even if they applied–“which is doubtful”–the state waived the BFOQ defense.

[2-8] TRIAL COURT ERRED IN CONCLUDING DISPARATE TREATMENT CLAIM FAILED: The Court held that the trial court erred in concluding that the Employees failed to establish a disparate treatment claim and further determined that the State had no valid legal justification for its discrimination.

ISSUE #3: Did the employees prevail on their hostile work environment claim?

[3-1] HOSTILE WORK ENVIRONMENT: “RCW 49.60.180(3) prohibits harassment based on a protected characteristic that rises to the level of a hostile work environment.” Id. at 260.

“An employee must demonstrate four elements for a hostile work environment claim: that the harassment (1) was unwelcome, (2) was because of a protected characteristic, (3) affected the terms or conditions of employment, and (4) is imputable to the employer.” Id. (citing Glassgow v. Ga.-Pac. Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985); see also Fisher v. Tacoma Sch. Dist. No. 10, 53 Wn.App. 591, 595-96, 769 P.2d 318 (1989)).

[3-2] THIRD ELEMENT (AFFECTED THE TERMS OR CONDITIONS OF EMPLOYMENT): The third element–affected the terms or conditions of employment–“requires that the harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. at 261 (citing Glasgow, 103 Wn.2d at 406) (internal quotation marks omitted). “Harassing conduct has also been described as ‘severe and persistent,’ and it must be determined ‘with regard to the totality of the circumstances.'” Id. (citing Glasgow, 103 Wn.2d at 406-07).

[3-3] THIRD ELEMENT CRITERIA: “The Court of Appeals has adopted criteria ‘[t]o determine whether the harassment is such that it affects the conditions of employment …; the frequency and severity of the discriminatory conduct; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.'” Id. at n.4 (citing Washington v. Boeing Co., 105 Wn.App. 1, 10, 19 P.3d 1041 (2000) (citing Sangster v. Albertson’s, Inc., 99 Wn.App. 156, 163, 991 P.2d 674 (2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)))).

[3-4] STAFFING DECISION WAS NOT SEVERE OR PERVASIVE HARASSMENT: In this case, the trial court held that the Employees did not meet the requirements of the third element; and, thereupon, the Supreme Court found that “the trial court applied the correct legal standard and did not err in concluding that the staffing decision over the course of a single weekend did not rise to the level of severe or pervasive harassment.” Id.

[3-5] TRIAL COURT DID NOT ERR IN DISMISSING HOSTILE WORK ENVIRONMENT CLAIM: The Court held that “based on the trial court’s factual findings, which we find are supported by substantial evidence, the trial court did not err in dismissing Employee’s hostile work environment claim.”

ISSUE #4: Are the employees entitled to relief in the form of damages, declaratory and injunctive relief, interest, attorney fees, and costs?

[4-1] REMEDIES: RCW 49.60.030(2) allows successful plaintiffs in WLAD actions to recover damages, injunctive relief, costs, and attorney fees.” Id.

[4-2] PLAINTIFFS ENTITLED TO RELIEF: Here, the Court determined that the plaintiff Employees were entitled to relief, because the Court had found that they both prevailed on their disparate treatment claim and complied with RAP 18.1 and RCW 49.60.030(2).

[4-3] REMAND: The Court remanded the “case to the trial court to determine the appropriate damages and reasonable attorney fees to award in” the case; and on “remand, the trial court should also consider whether injunctive relief is appropriate and, if so, the trial court will be responsible for crafting the scope of and enforcing any injunction issued.” Id.

NOTABLES & IMPLICATIONS:

TITLE VII

(1) “At the federal level, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, also contains antidiscrimination provisions with some similar statutory language” to WLAD. Id. at 257 (hyperlink added).

(2) “[W]ashington courts often look to federal case law on Title VII when interpreting the WLAD.” Id. (referencing, e.g., Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 180, 23 P.3d 440 (2001)).

(3) “We view Title VII cases as ‘a source of guidance,’ but we also recognize that ‘they are not binding and that we are free to adopt those theories and rationale which best further the purposes and mandates of our state statute.'” Id. (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 361-62, 753 P.2d 517 (1988)).

WASHINGTON LAW AGAINST DISCRIMINATION

(4) “Since 1949, the WLAD has existed to protect individuals from discrimination on the basis of race, among other protected characteristics.” Id.

(5) “The WLAD ‘shall be construed liberally’ to accomplish its antidiscrimination purposes.” Id. (citing RCW 49.60.020).

(6) “RCW 49.60.180 prohibits racial discrimination in employment.” Id. (hyperlink added).

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June 29, 2021May 26, 2022

Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735 (Wash. 1977)

This is a case summary of Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735 (Wash. 1977). Subjects include:

» TORT OF “OUTRAGE”

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**Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735 (Wash. 1977)**

case summarY – 4 PRIMARY Facts:

[1] David Contreras and his wife brought an action against Crown Zellerbach Corporation alleging five causes of action based upon allegedly abusive and improper conduct of Crown Zellerbach’s employees and supervisory personnel.

[2] Appellants’ complaint alleges the following facts:

[a] David Contreras and his wife lived in Cathlamet where Mr. Contreras was employed by respondent through the fall and winter of 1973.

[b] He was wrongfully terminated on January 24, 1974.

[c] During the time of his employment he was subjected to continuous humiliation and embarrassment by reason of racial jokes, slurs and comments made in his presence by agents and employees of the defendant corporation on the job site and during working hours.

[d] Respondent’s foreman and managing agents failed to control their employees and to accord appellant the right to work free of racial discrimination, slurs, comments and pressures.

[e] Respondent’s agents and employees, while acting within the scope of their employment, both while appellant was employed and after his discharge, made numerous statements accusing appellant wrongfully of stealing property owned by respondent.

[f] The effect of these untrue statements was to prevent appellant from seeking and holding permanent employment in the Cathlamet area and to hold him and his wife up to public scorn and ridicule.

[g] Some of the statements made by respondent’s agents and employees were made maliciously or with knowledge of their falsity or when they should have known the statements were false.

[h] This conduct resulted in an inability of appellant to obtain employment which in turn made him unable to pay his bills and ruined an otherwise excellent credit rating.

[i] His failure to find full-time employment is a direct and proximate result of respondent’s agents and employees’ slander and racial actions.

[j] Appellant’s [(i.e., the Contreras’)] claim for relief is that respondent’s conduct was intentional or reckless and so extreme in degree as to be beyond all reasonable bounds of decency.

[k] Such conduct in turn caused him severe emotional distress by reason of the acts of intimidation, demotions, humiliations and public exposure to scorn and ridicule when respondent’s agents knew or should have known that appellant, by reason of his nationality and background as a Mexican-American, was particularly susceptible to emotional distress from defendant’s conduct.

[l] He alleges respondent’s conduct thereby amounts to the tort of outrage.

[3] Crown Zellerbach moved to dismiss the first claim for relief, which is premised upon the tort of outrage, for failure to state a claim.

[4] The trial court granted this motion to dismiss and Contreras appeals.

Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 565 P.2d 1173 (Wash. 1977) (internal citations omitted).

ISSUE #1: Did the trial court err in granting Crown Zellerbach’s motion to dismiss Contreras’ first claim for relief premised upon the tort of outrage?

[1-1] TORT OF OUTRAGE — RESTATEMENT (SECOND) OF TORTS § 46: The “Restatement (Second) of Torts § 46 reads as follows:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or

(b) to any other person who is present at the time, if such distress results in bodily harm.”

Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 745, n. 1 (Wash. 1977).

[1-2] LIMITATIONS (INTENTIONAL/RECKLESS): “In Grimsby v. Samson, 85 Wash.2d 52, 59, 530 P.2d 291, 295 (1975), we adopted many of the comments to Restatement (Second) of Torts § 46, and stressed: First, the emotional distress must be inflicted intentionally or recklessly ; mere negligence is not enough.” Id. at 744, n.2, 565 P.2d 1173 (internal quotation marks omitted) (emphasis added).

[1-3] LIMITATIONS (OUTRAGEOUS & EXTREME): “In Grimsby v. Samson, 85 Wash.2d 52, 59, 530 P.2d 291, 295 (1975), we adopted many of the comments to Restatement (Second) of Torts § 46, and stressed: . . . Second, the conduct of the defendant must be outrageous and extreme. . . . it is not enough that a defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” Id. at 745, n.2, 565 P.2d 1173 (internal quotation marks omitted) (emphasis added).

“Liability exists ‘only where the conduct has been 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.’ (Italics ours.)” Id.

“Comment d further points out that liability in the tort of outrage ‘does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ ” Id. “In this area plaintiffs must necessarily be hardened to a certain degree of rough language, unkindness and lack of consideration.” Id. “Clearly a case-by-case approach will be necessary to define the precise limits of such conduct.” Id.

“Nevertheless, among the factors a jury or court should consider are the position occupied by the defendant (comment e ), whether plaintiff was peculiarly susceptible to emotional distress and defendant’s knowledge of this fact (comment f ), and whether defendant’s conduct may have been privileged under the circumstances (comment g ).” Id.

[1-4] LIMITATIONS (SEVERE EMOTIONAL DISTRESS): “In Grimsby v. Samson, 85 Wash.2d 52, 59, 530 P.2d 291, 295 (1975), we adopted many of the comments to Restatement (Second) of Torts § 46, and stressed: . . . Third, the conduct must result in severe emotional distress to the plaintiff (comment j ).” Id. at 745, n.2, 565 P.2d 1173 (emphasis added).

“Resulting bodily harm would, of course, be an indication of severe emotional distress, but a showing of bodily harm is not necessary.” Id. (internal quotation marks omitted).

[1-5] THE INITIAL DETERMINATION: “With the[ ] limitations in mind, the trial court first determines whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” Id. at 740, 565 P.2d 1173 (internal citations omitted).

[1-6] RACIALLY DISCRIMINATORY ACTION: According to the Washington State Supreme Court: “In Browning v. Slenderella Systems, 54 Wash.2d 440, 341 P.2d 859 (1959), we held recovery could be premised upon tort liability for emotional distress, unaccompanied by any physical injury where the victim was injured by racially discriminatory action.” Id. at 739, 565 P.2d 1173.

“The court there recognized that the 1948 supplement to Restatement of Torts § 46 changed the language in the initial statement in Restatement, Torts (1934), § 46, to allow recovery from ‘(o)ne who, without a privilege to do so, intentionally causes severe emotional distress to another . . .’ ” Id. (alteration in original). “In its opinion this court quoted subsection (g) of the then section 46:

(g) In short, the rule stated in this section imposes liability for intentionally causing severe emotional distress in those situations in which the actor’s conduct has gone beyond all reasonable bounds of decency. The prohibited conduct is conduct which in the eyes of decent men and women in a civilized community is considered outrageous and intolerable. Generally, the case is one in 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. at 740, 565 P.2d 1173 (citing Browning v. Slenderella Systems at 447-48, 341 P.2d at 864).

[1-7] POSITIONS OF AUTHORITY & OUTRAGEOUS BEHAVIOR: “When one in a position of authority, actual or apparent, over another has allegedly made racial slurs and jokes and comments, this abusive conduct gives added impetus to the claim of outrageous behavior.” Id. at 741, 565 P.2d 1173 (citing Restatement (Second) of Torts § 46 comment e).

“The relationship between the parties is a significant factor in determining whether liability should be imposed.” Id. (internal citations omitted).

[1-8] FORCED TO REMAIN IN PHYSICAL PROXIMITY OF RACIAL SLURS & COMMENTS: “Where a person is not free to leave but must remain in physical proximity to others who continually make racial slurs and comments, it is for the jury to determine both whether this is a factor in making the claim one of extreme outrage and the extent to which the employer was or should have been aware of these conditions, through its supervisory personnel or by other means.” Id. at 741, 565 P.2d 1173.

[1-9] PLAINTIFF’S OWN SUSCEPTIBILITY TO DISCRIMINATORY CONDUCT: “Plaintiff’s own susceptibility to racial slurs and other discriminatory conduct is a question for the trier of fact, and cannot be determined on demurrer.” Id. at 742, 565 P.2d 1173. “It is for the trier of fact to determine, taking into account changing social conditions and plaintiff’s own susceptibility, whether the particular conduct was sufficient to constitute extreme outrage.” Id.

[1-10] MOTION TO DISMISS — CR 12(b)(6): “In determining whether to dismiss appellants’ claim, this court must consider respondent’s challenge within the framework of CR 12(b)(6).” Id. at 742, 565 P.2d 1173.

“A motion to dismiss questions only the legal sufficiency of the allegations in a pleading.” Id. “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.

“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)).

“The 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, supra 85 Wash.2d at 55, 530 P.2d 291).

[1-11] STANDING: In this case, the Court initially determined that the trial court misapplied Grimsby v. Samson, 85 Wash.2d 52, 530 P.2d 291 (1975) to the instant case; essentially, the trial court, in misapplying Grimsby, “believed by our emphasis on the fact that the plaintiff must be an immediate family member of the person who is the object of the defendant’s actions, that it was our intent to limit this tort to third-person situations only.” Id. at 738, 565 P.2d 1173 (emphasis added).

The Court clarified that “[t]here is no reason to limit recovery on the tort of outrage to members of the family of those directly injured while excluding recovery by the person primarily injured and we decline to do so.” Id. at 738 (internal citations omitted).

“A vast majority of cases involving the tort of outrage have been actions brought by the recipient of the conduct.” Id. at 738 (citing Agis v. Howard Johnson Co., Mass., 355 N.E.2d 315 (1976); Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145 (1974); Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216 (1970); see Annot., 64 A.L.R.2d 100 (1959)).

[1-12] LIABILITY BASED ON RACIALLY DISCRIMINATORY ACTION: The Court then determined that “[i]n Browning v. Slenderella Systems, 54 Wash.2d 440, 341 P.2d 859 (1959), we held recovery could be premised upon tort liability for emotional distress, unaccompanied by any physical injury where the victim was injured by racially discriminatory action.” Id. at 739, 565 P.2d 1173.

Accordingly, the Court found that “liability could be premised on outrageous conduct such as that alleged [in the instant case].” Id. at 740 (emphasis added).

[1-13] ADEQUACY OF CLAIM: Next, the Court considered the Respondent’s argument: “[E]ven if it is held the direct recipient of allegedly outrageous conduct may bring suit based upon the tort of outrage, the claim here stated is inadequate.” Id. at 740, 565 P.2d 1173.

The Court concluded that “[w]ith the limitations in mind, the trial court first determines whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” Id. at 740.

The Court then addressed the law regarding positions of authority, relationship between the parties, and issues regarding physical proximity to those making racial slurs and comments.

[1-14] PLAINTIFF’S SUSCEPTIBILITY TO RACIAL SLURS & OTHER DISCRIMINATORY CONDUCT: Lastly, the Court considered the “defendants’ contention that plaintiff, as a truckdriver must have become accustomed to such abusive language.” Id. at 742, 565 P.2d 1173.

The Court concluded that “[i]t is for the trier of fact to determine, taking into account changing social conditions and plaintiff’s own susceptibility, whether the particular conduct was sufficient to constitute extreme outrage.” Id.

[1-15] PLAINTIFF’S EMOTIONAL DISTRESS CLAIM WITHIN PARAMETERS OF TORT OF OUTRAGE: The Court first declared that “[i]n determining whether to dismiss appellants’ claim, this court must consider respondent’s challenge within the framework of CR 12(b)(6).” Id. at 742.

Accordingly, the Court held as follows:

Viewed in this light, appellant’s claim that he was subjected to intentional or reckless conduct on the part of respondent which was beyond all reasonable bounds of decency and caused him severe emotional distress by reason of acts of intimidation, demotions, humiliation in public and exposure to scorn and ridicule, when respondent’s agents knew or should have known that by reason of his Mexican nationality and background he was particularly susceptible to emotional distress as a result of respondent’s conduct, is within the parameters of the tort of outrage as defined by our cases and the Restatement (Second) of Torts § 46(1).

Id. at 742-43, 565 P.2d 1173.

Accordingly, the Court reversed the trial court’s judgment of dismissal. Id. at 743.

NOTABLES & IMPLICATIONS:

1. CONCURRENCE — IN THE RESULT ONLY (JUDGES STAFFORD, HICKS & BRACHTENBACH)

In this case, Judge Stafford wrote a concurrence in result only wherein Judges Hicks and Brachtenbach concurred; Stafford asserted, in part, as follows:

We cannot say, as a matter of fact or a matter of law, that the alleged conduct in this case is the equivalent of the tort of outrage. It is actionable only, if after considering all of the surrounding circumstances, a jury concludes that the conduct is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and should be regarded as atrocious and utterly intolerable in a civilized society. We hold only that the allegations, if proved, provide a jury question. Restatement (Second) of Torts § 46 comment h.

Id. at 744-45, 565 P.2d 1173.

2. HISTORY OF THE TORT OF OUTRAGE

“Liability for outrage is of ancient lineage.” Id. at 738, 565 P.2d 1173. “The law in the classical age of the Roman Empire allowed recovery for outrage or insult as the delict of ‘iniuria.’ ” Id. “It required an intent to insult and that anger be shown as soon as the facts were known. Intent to insult, however, could be presumed from the facts, which spoke for themselves.” Id. at 738-39.

“Defamation under Roman law was also a case of ‘iniuria,’ where the basis of liability was not loss of reputation but outrage to feelings.” Id. at 739. “Publication to a third party was thus arguably unnecessary.” Id. (citing W. Buckland and A. McNair, Roman Law and Common Law 295-300 (1936)).

“Acceptance of the tort of outrage has undergone a remarkable evolutionary process in the United States in a relatively short time.” Id. at 739, 565 P.2d 1173. “Section 46 of the Restatement of Torts in its original form stated flatly there was no liability for the intentional infliction of emotional distress, or for bodily harm resulting from it, except in cases of assault and of the special liability of carriers covered in section 48.” Id. “This position was reversed in the 1948 supplement and the comments were completely rewritten.” Id. (citing Restatement (Second) of Torts § 46 at 21 (Tent. Draft No. 1, 1957)).

“The Restatement and courts supporting it have since drastically changed their position, from denial of liability for intentionally inflicting emotional distress to the allowance of liability against one who intentionally caused emotional distress without privilege to do so, and later to the present rule which requires that the conduct be extreme and outrageous Before liability will attach.” Id. (citing Pakos v. Clark, 253 Or. 113, 453 P.2d 682 (1969)).

3. RACIAL SLURS AND OTHER DISCRIMINATORY CONDUCT

PHYSICAL PROXIMITY: “Where a person is not free to leave but must remain in physical proximity to others who continually make racial slurs and comments, it is for the jury to determine both whether this is a factor in making the claim one of extreme outrage and the extent to which the employer was or should have been aware of these conditions, through its supervisory personnel or by other means.” Id. at 741, 565 P.2d 1173.

QUESTION FOR TRIER OF FACT: “As we as a nation of immigrants become more aware of the need for pride in our diverse backgrounds, racial epithets which were once part of common usage may not now be looked upon as ‘mere insulting language.’ ” Id. at 741, 565 P.2d 1173. “Changing sensitivity in society alters the acceptability of former terms.” Id. “It is noted in Alcorn v. Anbro Engineering, Inc., [2 Cal.3d 493, 498 n.4, 86 Cal.Rptr. 88, 91, 468 P.2d 216 (1970)] . . . :

[P]laintiff’s own susceptibility to racial slurs and other discriminatory conduct is a question for the trier of fact, and cannot be determined on demurrer.

Id. at 742, 565 P.2d 1173.

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June 29, 2021February 15, 2023

Fraternal Order of Eagles v. Grand Aerie of Fraternal Order, 148 Wn.2d 224 (Wash. 2002)

This is a case summary of Fraternal Order of Eagles v. Grand Aerie of Fraternal Order, 148 Wn.2d 224 (Wash. 2002), cert denied, 538 U.S. 1057, 123 S.Ct. 2221, 155 L.Ed.2d 1107 (2003).

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case summarY – 4 Facts:

[1] [In 1999,] Petitioners, two local chapters of the Fraternal Order of Eagles, Tenino and Whidbey Island Aerie, and several female members of the Tenino Aerie, …[sued the Grand Aerie in the Thurston County Superior Court claiming that the male-only admission policy violated the Washington Law Against Discrimination (WLAD) and Washington’s Equal Rights Amendment.]

[2] [In 2000,] … the trial court granted Petitioners’ summary judgment motion [as to WLAD] concluding that the Eagles may not discriminate on the basis of gender and must admit women into membership.

[3] Respondent Eagles … [timely appealed; and in 2001, the Court of Appeals] reversed the trial court, concluding that RCW 49.60.040(10) [(currently RCW 49.60.040(2))] is not ambiguous and, under a literal interpretation of the statute, fraternal organizations are ‘automatically excluded’ because the wording of the statute indicates the Legislature exempted them from its application without the necessity of examining whether they are ‘distinctly private.’

[4] In 2002, the Supreme Court granted review of the Court of Appeals decision and reversed. This article addresses solely the Supreme Court majority opinion.

Fraternal Order of Eagles v. Grand Aerie of Fraternal Order, 148 Wn.2d 224 (Wash. 2002), cert denied, 538 U.S. 1057, 123 S.Ct. 2221, 155 L.Ed.2d 1107 (2003) (internal citations omitted).

ISSUE #1: Does the Washington Law Against Discrimination require a “fraternal organization” to be “distinctly private” in order to qualify for exemption under the law?

[1-1] LEGISLATIVE INTENT: The Washington Law Against Discrimination (WLAD) is a “broad remedial statute,” and its purpose is “to prevent and eradicate discrimination on the basis of race, creed, color, national origin, sex or disability in public accommodations.” Fraternal Order of Eagles v. Grand Aerie of Fraternal Order, 148 Wn.2d 224, 237, 59 P.3d 655 (Wash. 2002), cert denied, 538 U.S. 1057, 123 S.Ct. 2221, 155 L.Ed.2d 1107 (2003) (internal citations omitted).

The WLAD should be interpreted in a way that is consistent with legislative intent. Id. at 255.

At the outset, legislative intent is determined from the purpose section which broadly prohibits discrimination in settings open to the public. Id. (internal citations omitted).

The Legislature mandated a liberal interpretation of WLAD and also intended a liberal reading of what constitutes a public accommodation. Id. (internal citations and quotation marks omitted).

[1-2] PUBLIC ACCOMMODATION: WLAD broadly defines the term “public accommodation” to include:

[A]ny place, licensed or unlicensed, kept for gain, hire, or reward, or where charges are made for admission, service, occupancy, or use of any property or facilities … or where food or beverages of any kind are sold for consumption on the premises, or where public amusement, entertainment, sports, or recreation of any kind is offered with or without charge, or … where the public gathers, congregates, or assembles for amusement, recreation, or public purposes, or public halls … PROVIDED, That nothing contained in this definition shall be construed to include or apply to any institute, bona fide club, or place of accommodation, which is by its nature distinctly private, including fraternal organizations, though where public use is permitted that use shall be covered by this chapter… .

Id. at 237-38 (citing RCW 49.60.040(10) [currently RCW 49.60.040(2)) (internal citations omitted).

[1-3] DISTINCTLY PRIVATE v. AUTOMATIC EXEMPTION: The Court established that the questions presented was specifically whether the Washington Law Against Discrimination requires a “fraternal organization” to be “distinctly private” in order to qualify for exemption under the law.

The trial court interpreted RCW 49.60.040(10) (currently RCW 49.60.040(2)) as exempting “fraternal organizations” from the WLAD, but only if the organizations could prove they were “distinctly private” in nature; whereas the Court of Appeals subsequently read the WLAD to automatically exclude fraternal organizations from application of the prohibitions in RCW 49.60.040(10) (currently RCW 49.60.040(2)).

To resolve the question presented, the Supreme Court considered legislative intent declaring that to ascertain it, the court resorts to (a) legislative history, (b) statutory construction, and (c) relevant case law. Fraternal Order of Eagles, 148 Wn.2d at 243.

[1-4] LEGISLATIVE HISTORY: The Court considered the legislative history and found, inter alia, that the “WLAD requires liberal construction of its provisions in order to accomplish the purposes of the law and states that nothing contained in the law shall be construed to deny the right to any person to institute any action or pursue any civil or criminal remedy based upon alleged violation of his or her civil rights.” Id. at 247. (internal citations and quotation marks omitted).

Moreover, WLAD exceptions should be narrowly construed. Id. (internal citations omitted). Accordingly, the Court found that “reading the proviso in RCW 49.60.040(10) [currently RCW 49.60.040(2)] to exclude ‘fraternal organizations,’ without determining their public, private, or religious nature, is inconsistent with the purpose of the WLAD.” Id. at 255 (modification to original).

Thus, it’s consistent with legislative intent to interpret the WLAD to exclude organizations from its reach that have been determined to be distinctly private. Id.

[1-5] STATUTORY CONSTRUCTION: As a general principle, an unambiguous statute is not subject to judicial construction. Id. at 239 (internal citations omitted).

The Court found that “a statute is ambiguous if it can reasonable be interpreted in two or more ways, but it is not ambiguous simply because different interpretations are conceivable.” Id. at 239-40 (internal citations omitted).

In this case, the Court applied various canons of statutory construction while considering the arguments of the parties; and it found that RCW 49.60.040(10) (currently RCW 49.60.040(2)) is ambiguous and thus subject to judicial construction.

[1-6] RELEVANT CASE LAW: The court in Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), declared the following list of factors (hereinafter, “Roberts Factors”) may be used as framework for inquiry to determine the “distinctly private” exemption: (1) size, (2) purpose, (3) policies, (4) selectivity, (5) public services offered, (6) practices, and (7) other characteristics pertinent to a particular case.

[1-7] RCW 49.60.040(10) (currently RCW 49.60.040(2)) is subject to judicial interpretation because it is ambiguous. The Court found that “it is consistent with legislative intent to interpret RCW 49.60.040(10) (currently RCW 49.60.040(2)) to exclude distinctly private organizations from the purview of the WLAD.” Fraternal Order of Eagles, 148 Wn.2d at 256.

[1-8] The WLAD requires a “fraternal organization” to be distinctly private” in order to qualify for exemption under RCW 49.60.040(10) (currently RCW 49.60.040(2)) — the “fraternal organization” is not automatically exempted. Id. “Distinctly private” organizations may be determined by applying the Roberts Factors. Id.

ISSUE #2: Did the Fraternal Order of Eagles qualify for the “distinctly private” exemption under RCW 49.60.040(10) (currently RCW 49.60.040(2))?

[2-1] SUMMARY JUDGMENT: Summary judgment is appropriate if there remains no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 256.

[2-2] ROBERTS v. UNITED STATES JAYCEES FACTORS: As mentioned above, the following Roberts Factors may be used as framework for inquiry to determine the “distinctly private” exemption: (1) size, (2) purpose, (3) policies, (4) selectivity, (5) public services offered, (6) practices, and (7) other characteristics pertinent to a particular case.

The Court determined that “emphasis should be placed on whether the organization is a business or a commercial enterprise and whether its membership policies are so unselective and unrestrictive that the organization can fairly said to offer its services to the public.” Id. at 251.

[2-3] THE COURT CONSIDERED THE “ROBERTS FACTORS”: In this case, the Court first concluded that the Petitioners and Respondents agreed that there remained no genuine issue of material fact following the orders on summary judgment granted by the trial court. Id. at 256. The Court then considered the trial court record and evaluated the trial court’s application of the Roberts Factors. Id. at 254.

[2-4] TRIAL COURT PROPERLY ANALYZED “ROBERTS FACTORS”: The Court concluded that the trial court properly analyzed the Roberts Factors in relation to the established facts to determine if there remained any issue of material fact on the question whether the Eagles is a distinctly private organization.

[2-5] TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT: The Court found that “the trial court properly granted summary judgment after concluding there remained no issue of material fact on the question whether the Fraternal Order of Eagles is a distinctly private organization and that Respondents Eagles are not entitled to exemption under the WLAD, RCW 49.60.040(10) (currently RCW 49.60.040(2)).”

Ultimately, the Court held that “the trial court was correct in concluding that Respondents Eagle may not discriminate on the basis of gender and must admit women into membership.” Id. at 257.

NOTABLES & IMPLICATIONS:

WLAD HISTORY

(1) In 1889, the Washington State Legislature enacted the State’s first anti-discrimination law, a civil rights act, which “granted to all persons full and equal enjoyment of the public accommodations … applicable alike to all citizens of whatever race, color, or nationality.” Fraternal Order of Eagles, Tenino Aerie, 148 Wn.2d at 243 (internal citations omitted.)

(2) In 1895, the civil rights act was amended to add the broad classification “public places.” Id. (internal citations omitted).

(3) In 1909, the civil rights act was codified, and over time it enlarged the sphere of what presently is considered places of “public accommodation.” Id. at 243-44 (internal citations omitted.)

(4) The civil rights statute is not the same as what is currently the Washington Law Against Discrimination, RCW 49.60. In 1953, the civil rights statute was amended and codified as RCW 9.91.010, and it provided “a private cause of action for damages and remedies” for individuals experiencing racial discrimination because of race. Id. at 244 (internal citations omitted).

(5) WLAD was enacted in 1949 “to prevent and eliminate discrimination based on race, creed, color, or national origin in employment.” Id. (internal citations omitted).

(6) WLAD also granted a state agency, known as the State Board Against Discrimination, “jurisdiction and powers to carry out the purposes of the Act.” Id. (internal citations omitted). However, the Legislature failed to mandate private civil actions leaving the State Board with “exclusive jurisdiction over enforcement of the Act.” Id. (internal citations omitted). That State Board is now called the Washington State Human Rights Commission.

(7) In 1957, the WLAD was amended “to provide any person the right to pursue any action or remedy for a violation of that person’s civil rights.” Id. (internal citations omitted).

(8) In 1971, the State Board was designated as the Washington State Human Rights Commission, and the Legislature “granted it jurisdiction and powers to carry out the provisions of the … [WLAD] and the policies and practices of the commission in connection therewith.” Id. at 237 (internal citations and quotation marks omitted). “The Commission is authorized to receive, impartially investigate, and pass upon complaints alleging unfair practices defined by the Act.” Id. (internal citations and quotation marks omitted).

(9) By 1973, “the right to pursue a cause of action for violation of the general civil right to be free from discrimination and free from unfair practices” was established; however, “the jurisdiction of the Human Rights Commission continued to be limited to unfair practices.” Id. (internal citations omitted).

(10) Over time, the Legislature has expanded the scope of WLAD by enacting amendments to include unfair practices in financial institutions, credit transactions, insurance transactions, and real estate transactions. Id. at 246 (internal citations omitted).

STATUTORY CONSTRUCTION

(11) “The construction of a statute is a question of law that the court reviews de novo.” Id. at 239 (internal citations omitted).

(12) “In interpreting a statute, the primary objective of the court is to ascertain and carry out the intent and purpose of the Legislature in creating it.” Id. (internal citations omitted).

(13) “To determine legislative intent, the court looks first to the language of the statute.” Id. (internal citations omitted).

(14) “If the statute is unambiguous, its meaning is derived from the plain language of the statute alone.” Id. (internal citations omitted).

(15) “Legislative definitions provided in a statute are controlling, but in the absence of a statutory definition, courts may give a term its plain and ordinary meaning by referencing to a standard dictionary.” Id. (internal citations omitted).

(16) The “court will avoid literal reading of a statute which would result in unlikely, absurd, or strained consequences.” Id. (internal citations omitted).

(17) “An unambiguous statute is not subject to judicial construction.” Id. (internal citations omitted).

(18) “A statute is ambiguous if it can reasonably be interpreted in two or more ways, but it is not ambiguous simply because different interpretations are conceivable.” Id. at 239-40 (internal citations omitted).

(19) “The first role of a court is to examine the language of a statute while adhering to the Legislature’s intent and purpose in enacting it.” Id. at 240 (internal citations omitted).

WLAD LEGISLATIVE INTENT

(20) The purpose of the WLAD is “to deter and eradicate discrimination in Washington … [and it] is a policy of the highest order.” Id. at 246 (internal citations omitted).

(21) The Washington Law Against Discrimination “contains a sweeping policy statement that strongly condemns many forms of discrimination.” Id. at 246-47 (internal citations omitted).

(22) “The WLAD requires liberal construction of its provisions in order to accomplish the purposes of the law and states that nothing contained in the law shall be construed to deny the right to any person to institute any action or pursue any civil or criminal remedy based upon an alleged violation of his or her civil rights.” Id. at 247 (internal citations and quotation marks omitted).

(23) WLAD “exceptions should be narrowly construed.” Id. (citing Phillips v. City of Seattle, 111 Wash.2d 903, 908, 766 P.2d 1099 (1989)).

(24) The WLAD should be interpreted in a manner consistent with legislative intent. Id. at 255. (internal citations omitted).

(25) The Legislature mandated liberal interpretation of the WLAD. Id. (internal citations omitted).

WLAD GENERALLY

(26) In 1949, the Washington Legislature enacted the Washington Law Against Discrimination as “a broad remedial statute” designed to “prevent and eliminate discrimination based on race, creed, color, or national origin in employment.” Id. at 237 (internal citations omitted).

(27) “The act recognizes that the right to be free from such discrimination is a civil right enforceable in private civil actions by members of the enumerated protected classes.” Id. (internal citations omitted).

(28) “Although the rights enumerated include employment, public accommodation, assemblage and amusement, the protected rights are not limited to those.” Id. at 237 (referencing RCW 49.60.030(1)).

case summarY – 7 PRIMARY Facts:

ISSUE #1: Under the Washington Law Against Discrimination (RCW 49.60), do courts apply a 3-year statute of limitations to actions pursuant to RCW 4.16.080(2)?

[1-1] THE WASHINGTON LAW AGAINST DISCRIMINATION (WLAD) DOES NOT HAVE ITS OWN STATUTE OF LIMITATIONS

[1-2] TWO-YEAR STATUTE OF LIMITATIONS (“CATCH-ALL STATUTE”) — RCW 4.16.130

[1-3] THREE-YEAR STATUTE OF LIMITATIONS — RCW 4.16.080(2)

[1-3a] Three-Year Statute of Limitations Applies to Invasions to Plaintiff’s Person or Property Rights

[1-3b] The WLAD Liberal-Construction Mandate Supports 3-Year Statute of Limitations

[1-4] THE CASELAW (4 CASES)

[1-4a] Canon v. Miller

[1-4b] Luellen v. Aberdeen

[1-4C] State ex rel. Bond v. State

[1-4D] Washington v. Northland Marine Co.

[1-5] LOCKHEED CONTENDS THAT THE 2-YEAR “CATCH-ALL” STATUTE OF LIMITATIONS APPLIES TO WLAD ACTIONS

[1-5A] LOCKHEED’S ARGUMENT #1 — THE 2-YEAR STATUTE OF LIMITATIONS APPLIES to liabilities created by statute:

COURT’S ANALYSIS — LOCKHEED’S ARGUMENT #1

[1-5B] LOCKHEED’S ARGUMENT #2 — THE WLAD DOES NOT PROTECT PROPERTY RIGHTS:

COURT’S ANALYSIS — LOCKHEED’S ARGUMENT #2

[1-6] FURTHER SUPPORT FOR APPLYING THE 3-YEAR STATUTE OF LIMITATIONS IS FOUND IN WLAD:

[1-7] COURTS APPLY A 3-YEAR STATUTE OF LIMITATIONS TO WLAD ACTIONS PURSUANT TO RCW 4.16.080(2) — REVERSED & REMANDED:

NOTABLES & IMPLICATIONS:

FAILURE OF PUBLIC OFFICIALS TO PERFORM THEIR OFFICIAL DUTIES — northern grain & warehouse co. V. holst

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case summarY – 19 PRIMARY Facts:

ISSUE #1: Did the Court properly dismiss Chen’s discrimination claims (i.e., wrongful termination based on age, race, and national origin?

ISSUE #2: Did the Court properly dismiss Chen’s fraud claim?

ISSUE #3: Did the Court abuse its discretion in striking Chen’s affidavit and declaration in support of his motion for reconsideration?

NOTABLES & IMPLICATIONS:

PLEADINGS

PROMISSORY ESTOPPEL

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case summarY – 12 PRIMARY Facts:

ISSUE #1: Was the trial court’s summary-judgment dismissal of Plaintiff’s hostile-work-environment claim proper?

ISSUE #2: Was the trial court’s summary-judgment dismissal of Plaintiff’s disparate treatment claim proper?

SPECIFIC INSTANCE #1 — THE PICTURE:

SPECIFIC INSTANCE #2 — THE CAR:

SPECIFIC INSTANCE #3 — THE HARSHER DISCIPLINE:

ISSUE #3: Was the trial court’s summary-judgment dismissal of Plaintiff’s retaliatory-discharge claim proper?

NOTABLES & IMPLICATIONS:

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case summary – 7 Facts:

» MAJORITY OPINION: DOLLIVER, Justice; DURHAM, C.J., and SMITH, GUY and MADSEN, JJ., concur.

ISSUE #1 (Majority Opinion): Did the trial court err in granting Plaintiff’s motion, concluding RCW 49.60.030(2) both permitted punitive damages in an employment discrimination action and operated retrospectively?

» CONCURRING OPINION: TALMADGE, Justice (concurring); JOHNSON, ALEXANDER and SANDERS, JJ., concur.

ISSUE #2 (Concurring Opinion): Did “the Legislature intend[ ] by its 1993 amendments to RCW 49.60, our Law Against Discrimination, to incorporate the remedy of exemplary damages allowed in federal civil rights actions[ ]”?

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case summarY – 36 Facts:

ISSUE #1: “Does an independent contractor who claims she was treated unfairly in the negotiation and performance of a contract for personal services have a cause of action for sex discrimination under RCW 49.60.030?” Id. at 104.

ISSUE #2: Did the Plaintiff present sufficient evidence to establish a prima facie case of discrimination?

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case summarY – 12 Facts:

ISSUE #1: Did the trial court err in granting Albertson’s and Mr. Meyers’ motion for summary judgment dismissing plaintiff Sangster’s sexual harassment claim?

NOTABLES & IMPLICATIONS:

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case summarY – 21 Facts:

ISSUE #1: Does RCW 49.60.210(1) create 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?

ISSUE #2: Is Zhu entitled to attorneys fees on review?

NOTABLES & IMPLICATIONS:

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case summarY – 5 Facts:

ISSUE #1: Did Alonso sufficiently establish a prima facie disparate treatment case under the direct evidence test?

ISSUE #2: Did Alonso establish a prima facie hostile work environment claim?

ISSUE #3: Did the superior court err in dismissing Alonso’s retaliation claim?

NOTABLES & IMPLICATIONS:

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case summarY – 10 PRIMARY Facts:

ISSUE #1: Does the Washington Law Against Discrimination apply to the situation where a co-worker, acting on his own behalf, harasses, threatens, or makes sexual advances toward another worker?

ISSUE #2: Did Jenkins (a co-worker) violate public policy against sexual discrimination and retaliation?

NOTABLES & IMPLICATIONS:

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case summarY – 7 PRIMARY Facts:

ISSUE #1: Does the WLAD amendment apply retroactively and, if not, is preamendment discriminatory conduct actionable?

ISSUE #2: Is a single comment made postamendment a discriminatory act?

NOTABLES & IMPLICATIONS:

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CASE SUMMARY – 11 Facts:

ISSUE #1: “The issue is whether the statute of limitations is tolled by service of a summons upon the defendant when the summons is not served with an accompanying complaint.” Id. at 819.

NOTABLES & IMPLICATIONS:

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CASE SUMMARY – 14 Facts:

ISSUE #1: Is a co-worker subject to suit under RCW 49.60.210(1)?

**ISSUE #1 (Majority Opinion):** Did the trial court err in granting Plaintiff’s motion, concluding RCW 49.60.030(2) both permitted punitive damages in an employment discrimination action and operated retrospectively?

**ISSUE #2 (Concurring Opinion):** Did “the Legislature intend[ ] by its 1993 amendments to RCW 49.60, our Law Against Discrimination, to incorporate the remedy of exemplary damages allowed in federal civil rights actions[ ]”?