Disparate Treatment Archives - Washington Employment Law Digest

May 26, 2022October 20, 2024

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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February 17, 2022October 20, 2024

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).

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

[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 11, 2021October 20, 2024

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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June 29, 2021October 20, 2024

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 has 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. See id at 257.

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, 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).

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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**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)**

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)).