Constructive Discharge Archives - Washington Employment Law Digest

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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.

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

[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, 2021October 20, 2024

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)).