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

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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**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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July 12, 2021May 26, 2022

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

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

» UNLWAFUL RETALIATION

» JOB APPLICANTS

» PROSPECTIVE EMPLOYERS

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

case summarY – 21 Facts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[17] The court denied reconsideration.

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

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

[20] [T]he district court granted the motion in part and certified the following question regarding the scope of RCW 49.60.210(1) to . . . [the Washington State Supreme [C]ourt]: “Does RCW 49.60.210(1) create a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer?”

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

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

ISSUE #1: Does RCW 49.60.210(1) create a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer?

[1-1] GENERALLY

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

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

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

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

STATUTORY INTERPRETATION IS MATTER OF LAW: The issue of whether RCW 49.60.210(1) creates a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer is a question of statutory interpretation and therefore a matter of law. See Zhu, 404 P.3d at 508.

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

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

[1-2] DEFINITIONS

WLAD DEFINITION OF EMPLOYER: “For purposes of WLAD, an ’employer’ is broadly defined as ‘any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit.'” Id. at 508 (citing RCW 49.60.040(11)).

DEFINITION INCLUDES PROSPECTIVE EMPLOYERS: “This definition clearly includes prospective employers, and nothing about the statutory context indicates that ‘any employer’ means something different for purposes of the antiretaliation statute than it does for the purposes of the rest of WLAD.” Id. at 509 (referencing Champion v. Shoreline Sch. dist. No. 412, 81 Wn.2d 672, 676, 504 P.2d 304 (1972) (we assume that when the legislature uses the same word in different parts of a single statutory scheme, that word has the same meaning throughout)).”

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

WLAD DEFINITION OF PERSON: “WLAD defines a ‘person’ in extremely broad terms to include one or more individuals, partnerships, associations, organizations, corporations, cooperatives, legal representatives, trustees and receivers, or any group of persons; it includes any owner, lessee, proprietor, manager, agent, or employee, whether one or more natural persons; and further includes any political or civil subdivisions of the state and any agency or instrumentality of the state or of any political or civil subdivision thereof.” Id. at 508 (citing RCW 49.60.040(19)).

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

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

[1-3] STRUCTURE

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

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

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

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

[1-4] PURPOSE

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

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

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

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

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

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

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

Accordingly, the Court determined both of the following:

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

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

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

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

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

In this case, the Court determined that:

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

(2) “Zhu is obviously a person[ ]”;

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

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

Id. at 508-9.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NOTABLES & IMPLICATIONS:

STATUTORY CONSTRUCTION

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

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

WLAD ANTIRETALIATION PROVISION

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

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

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

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

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

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

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

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

WLAD GENERALLY

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

WLAD POLICY

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

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

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

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

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July 11, 2021May 26, 2022

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

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

» DIRECT EVIDENCE TEST

» DISPARATE TREATMENT

» HOSTILE WORK ENVIRONMENT

» UNLAWFUL RETALIATION

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

case summarY – 5 Facts:

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

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

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

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

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

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

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

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

“To establish a prima facie disparate treatment discrimination case, a plaintiff must show that his employer simply treats some people less favorably than others because of their protected status.” Id. (citing Johnson v. Dep’t of Soc. & Health Servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In this case:

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

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

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

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

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

In this case:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) the harassment was unwelcome,

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

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

(4) the harassment is imputable to the employer.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) he engaged in statutorily protected activity,

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

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

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

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

[3-3] COMPLAINTS MUST REFERENCE PLAINTIFF’S PROTECTED STATUS: “A general complaint about an employer’s unfair conduct does not rise to the level of protected activity in a discrimination action under WLAD absent some reference to the plaintiff’s protected status.” Id. (referencing Graves v. Dep’t of Game, 76 Wn.App. 705, 712, 887 P.2d 424 (1994)).

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

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

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

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

NOTABLES & IMPLICATIONS:

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

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

HOSTILE WORK ENVIRONMENT (IMPUTABLE TO EMPLOYER) — ASSIGNING OVERTIME

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

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

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

INDIRECT DEROGATORY RACIALLY CHARGED LANGUAGE MAY BE ACTIONABLE

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

THE O’NEAL RULE

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

TITLE VII FOR GUIDANCE

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

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July 8, 2021May 26, 2022

Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.App. 927 (Div. 1 1998)

This is a case summary of Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.App. 927 (Div. 1, 1998). Primary subjects include, but are not limited to the following:

» UNLAWFUL RETALIATION

» CO-WORKER LIABILITY

» PRINCIPLES OF STATUTORY CONSTRUCTION

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**Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.App. 927 (Div. 1 1998)**

CASE SUMMARY – 14 Facts:

[1] Alaska Trawl Fisheries, Inc. (ATF) owned the fishing vessel F/T ENDURANCE, a factory trawler.

[2] ATF employed Anthony Malo and Bart Campbell to alternate as captains.

[3] Early in 1992, Malo twice confronted Campbell about complaints that Campbell was behaving improperly towards some of the female crew members.

[4] Campbell denied any improper behavior and became antagonistic towards Malo.

[5] Malo reported the complaints and his confrontation with Campbell to Bill Howell, who was ATF’s president at that time.

[6] On October 27, 1993, Craig Cross became the new president of ATF, replacing Howell.

[7] A few days later, Cross went to Dutch Harbor to see the F/T ENDURANCE. While there, Cross met with Campbell, who was the captain on board, and other officers and crew members.

[8] According to Malo, Cross told him that he had chosen to retain Campbell as the sole captain because he preferred not to have a bifurcation of the crew and because Campbell was more acceptable to ATF’s owners.

[9] Malo then told Cross about the sexual harassment allegations other crew members had made against Campbell.

[10] According to Malo, Cross appeared to have no prior knowledge of these allegations.

[11] He later sued Cross, ATF, Campbell and Campbell’s company, Campbell Fisheries, Inc. (CFI).

[12] Malo brought a retaliatory discharge claim against Campbell, the co-captain, under Washington’s Law Against Discrimination, RCW 49.60.

[13] The trial court dismissed it on the ground that Campbell was not Malo’s employer and therefore was not subject to liability under RCW 49.60.210(1).

[14] Malo appeals contending that the statute unambiguously controls the conduct of any “person” even if that person is not an employer.

Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.App. 927 (Div. 1, 1998) (internal citations omitted) (hyperlink added).

ISSUE #1: Is a co-worker subject to suit under RCW 49.60.210(1)?

[1-1] WLAD ANTI-RETALIATION PROVISION: “RCW 49.60.210(1) provides:

Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.App. 927, 930 (Div. 1, 1998) (citing RCW 49.60.210(1)) (emphasis and hyperlink added).

[1-2] PRINCIPLE OF STATUTORY CONSTRUCTION–GENERAL TERMS: “A general term used at the end of a sequence in a statute is restricted in its application by the preceding words.” Id.

[1-3] PRINCIPLE OF STATUTORY CONSTRUCTION–CONTEXT: “Provisions in a statute are to be read in the context of the statute as a whole.” Id. (citing Pope v. University of Washington, 121 Wash.2d 479, 489, 852 P.2d 1055 (1993)).

[1-4] PRINCIPLE OF STATUTORY CONSTRUCTION–THE EJUSDEM GENERIS RULE: “The ejusdem generis rule requires that general terms appearing in a statute in connection with specific terms are to be given meaning and effect only to the extent that the general terms suggest items similar to those designated by the specific terms.” Id.

[1-5] WLAD ANTI-RETALIATION PROVISION & THE PRINCIPLES OF STATUTORY CONSTRUCTION: In this case, the Court applied the principles of statutory construction to RCW 49.60.210(1) and held “that the general term ‘or other person’ is restricted by the words ’employer,’ ’employment agency’ and ‘labor union.'” Id. at 930 (citing RCW 49.60.210(1)) (emphasis and hyperlink added).

The Court reasoned that “[t]he section, read as a whole, is directed at entities functionally similar to employers who discriminate by engaging in conduct similar to discharging or expelling a person who has opposed practices forbidden by RCW 49.60.” Id. (hyperlink added).

The Court then determined as follows:

[1] Campbell did not employ, manage or supervise Malo.

[2] [Campbell] … was not in a position to discharge Malo or to expel him from membership in any organization[ ]”; the Court noted that this was in contrast to the case in “Galbraith v. Tapco Credit Union, 88 Wash.App. 939, 946 P.2d 1242 (1997), review denied, 135 Wash.2d 1006, 959 P.2d 125 (1998) (liability under RCW 49.60.210 extends to credit unions who discriminate against credit union members engaged in protected activities).

Malo, 92 Wn.App. at 930 (emphasis, paragraphs, and hyperlink added).

[1-6] RCW 49.60.210 DOES NOT CREATE PERSONAL AND INDIVIDUAL LIABILITY FOR COWORKERS (AFFIRMED): The Court concluded that “[b]ecause RCW 49.60.210 does not create personal and individual liability for co-workers, the trial court did not err in dismissing Malo’s claim against Campbell under that statute.” Malo, 92 Wn.App. at 930-31 (hyperlink added).

Accordingly, the Court affirmed the trial court’s ruling and held that “Campbell was not subject to suit under RCW 49.60.210(1) because he was Malo’s co-worker.” Malo, 92 Wn.App. at 928.

NOTABLES & IMPLICATIONS:

PRINCIPLES OF STATUTORY CONSTRUCTION

(1) CONTEXT: “Provisions in a statute are to be read in the context of the statute as a whole.” Id. at 930 (citing Pope v. University of Washington, 121 Wash.2d 479, 489, 852 P.2d 1055 (1993)).

(2) EJUSDEM GENERIS RULE: “The ejusdem generis rule requires that general terms appearing in a statute in connection with specific terms are to be given meaning and effect only to the extent that the general terms suggest items similar to those designated by the specific terms.” Id.

(3) GENERAL TERMS: “A general term used at the end of a sequence in a statute is restricted in its application by the preceding words.” Id.

THE WLAD ANTI-RETALIATION PROVISIONS: RCW 49.60.210

(4) CO-WORKER LIABILITY: RCW 49.60.210 does not create personal and individual liability for co-workers. See id. at 931.

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July 7, 2021May 26, 2022

Cornwell v. Microsoft Corporation, 430 P.3d 229 (Wash. 2018)

This is a case summary of Cornwell v. Microsoft Corporation, 430 P.3d 229 (Wash. 2018). Subjects include:

» UNLAWFUL RETALIATION

» CAUSATION

» THREE ASSOCIATED EVALUATION STANDARDS:

(1) “Actual Knowledge” Standard;

(2) “Knew or Suspected” Standard, and

(3) “General Corporate Knowledge” Standard.

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**Cornwell v. Microsoft Corporation, 430 P.3d 229 (Wash. 2018)**

CASE SUMMARY – 20 Facts:

[1] While working for Microsoft, Cornwell believed that her then-supervisor was discriminating against her on the basis of sex, engaging in romantic favoritism, and taking retaliatory action against her.

[2] She hired an attorney and settled the case with Microsoft.

[3] The settlement was confidential, and Cornwell was no longer required to work under her then-manager, … Parsons.

[4] Seven years later, Cornwell’s new manager, … Blake, asked Cornwell to mentor under another Microsoft employee.

[5] After learning that the employee reported to Parsons, Cornwell told Blake that she could not mentor under the employee.

[6] Blake asked Cornwell why, and Cornwell responded that it was because she had filed a “lawsuit” against Microsoft and could not report to Parsons.

[7] Cornwell also told Blake that the suit involved a review score issue and was confidential.

[8] Blake sought more information about the lawsuit from human resources and her direct supervisor, McKinley.

[9] Human resources did not have any information on file about the lawsuit and promised to follow up on the issue.

[10] Cornwell informed Blake that she was unable to discuss the lawsuit further because of the confidentiality agreement and expressed dissatisfaction that Blake had contacted human resources about the matter.

[11] Shortly after Cornwell told her about the suit, Blake conducted a mandatory performance review of Cornwell.

[12] During that year, Cornwell had received positive reviews from her peers[ ][.]

[13] During her previous years working for Microsoft, Cornwell also had received good performance ratings and promotions.

[14] Despite this positive employment history, Blake informed Cornwell that she was trending toward a rating of “4,” the second lowest possible score.

[15] Ultimately, Blake and McKinley recommended that Cornwell be rated “5,” the lowest possible score.

[16] Other managers disagreed with the rating, believing that Cornwell was a higher performer.

[17] Despite these disagreements, McKinley said that she and Blake would “take the conversation ‘off-line,’ ” meaning that Blake and McKinley would make the final decision about Cornwell’s performance rating without the involvement of the other managers.

[18] Cornwell’s final performance rating was assessed as a “5”— the lowest possible score.

[19] Cornwell was then laid off as part of a larger reduction in force.

[20] [C]ornwell did not learn about her low score until several years later when she was told that she could not be rehired at Microsoft because her final performance rating was so poor.

Cornwell v. Microsoft Corporation, 430 P.3d 229, 232-33 (Wash. 2018) (internal citations omitted).

procedural HISTORY – 8 facts:

[21] Based on these events, Cornwell filed suit against Microsoft, alleging retaliation in violation of WLAD [(i.e., Washington Law Against Discrimination)].

[22] The trial court granted Microsoft’s motion for summary judgment because the judge believed that “there isn’t evidence that Ms. Blake, who gave [Cornwell] the bad [review] score, knew that there was a complaint under WLAD.”

[23] As a result, the judge believed that Cornwell had failed to show a causal link between the adverse employment action taken against her and her prior lawsuit against Microsoft.

[24] Cornwell appealed the trial court’s ruling to the Court of Appeals.

[25] The Court of Appeals affirmed the grant of summary judgment in an unpublished opinion.

[26] But it declined to address whether Cornwell’s prior lawsuit was “protected activity” under WLAD.

[27] The court also declined to adopt Cornwell’s proposed standards of review for the claim.

[28] Cornwell appealed the Court of Appeals’ adverse decision to … [the Washington State Supreme Court], and … [it] accepted review of all issues.

Cornwell v. Microsoft Corporation, 430 P.3d 229, 233 (Wash. 2018) (internal citations omitted).

ISSUE #1: Did plaintiff Cornwell present “enough evidence to show that her supervisors had sufficient knowledge that she had taken a protected action under the Washington Law Against Discrimination (WLAD), RCW 49.60.030?” Id. at 232.

[1-1] STANDARD OF REVIEW: “[The Court] … review[s] a trial court’s grant of summary judgment de novo.” Cornwell v. Microsoft Corporation, 430 P.3d 229, 233 (Wash. 2018) (citing Scrivener v. Clark Coll., 181 Wn.2d 439, 444, 334 P.3d 541 (2014)).

“Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Id. (internal quotation marks omitted).

“[The Court] must also consider all facts and make all reasonable factual inferences in the light most favorable to the nonmoving party.” Id. at 234 (citing Scrivener, 181 Wn.2d at 444, 334 P.3d 541) (internal quotation marks omitted).

“[B]ecause of the difficulty of proving a discriminatory motivation … [s]ummary judgment for an employer is seldom appropriate in the employment discrimination context[.]” Id. at 233-34 (internal citations and quotation marks omitted) (alteration in original).

[1-2] RETALIATION UNDER WLAD: “WLAD proscribes discrimination in employment on the basis of sex, race, sexual orientation, and other protected characteristics.” Id. at 234 (citing RCW 49.60.030).

“WLAD also prohibits employers from retaliating against employees who oppose discriminatory practices.” Id. (citing RCW 49.60.210(1)).

“To further these purposes, the legislature has directed … [the courts] to liberally construe the provisions of WLAD.” Id. (citing RCW 49.60.020).

[1-3] THE MCDONNELL DOUGLAS BURDEN-SHIFTING FRAMEWORK: “When evaluating the merits of cases brought under WLAD, … [the courts] employ the McDonnell Douglas ‘evidentiary burden-shifting’ framework.” Id. at 234 (citing Mikkelsen v. Public Utility District, 189 Wn.2d 516, 526, 404 P.3d 464 (2017)) (internal footnote and associated citation omitted).

“This framework involves three steps, but … [the court] is concerned with only the first step in this case — the plaintiff’s burden to establish a prima facie case of discrimination.” Id. (citing Scrivener, 181 Wn.2d at 446, 334 P.3d 541).

“Ordinarily the prima facie case must, in the nature of things, be shown by circumstantial evidence, since the employer is not apt to announce retaliation as his motive.” Id. (internal citations and quotation marks omitted).

[1-4] THE PRIMA FACIE CASE OF RETALIATION: “To establish a prima facie case of retaliation, an employee must show three things: (1) the employee took a statutorily protected action, (2) the employee suffered an adverse employment action, and (3) a causal link between the employee’s protected activity and the adverse employment action.” Id. at 234 (citing Currier v. Northland Servs., Inc., 182 Wn.App. 733, 742, 332 P.3d 1006 (2014); see also Wilmot v. Kaiser Alum. & Chem. Corp, 118 Wn.2d 46, 68, 821 P.2d 18 (1991) (“establishing the retaliation test in the worker’s compensation context”)) (emphasis added).

[1-5] THE COURT ONLY CONSIDERED THE 3RD ELEMENT (CAUSATION): “Microsoft alleges that Cornwell has failed to produce sufficient evidence for the first and third elements of her prima facie case.” Id. at 234. However, the Court elected to consider only the third element–causation–as follows:

Because the Court of Appeals declined to address whether Cornwell’s lawsuit against Microsoft was a protected activity, and because the parties did not brief the issue to us, we do not reach that issue on appeal. We instead address only whether Cornwell presented sufficient evidence to show a potential causal link between her performance rating score, her termination, and her prior lawsuit.

Id. at 234-35 (emphasis added).

[1-6] PROVING CAUSATION: “An employee proves causation ‘by showing that retaliation was a substantial factor motivating the adverse employment decision.’ ” Id. at 235 (citing Allison v. Hous. Auth., 118 Wn.2d 79, 96, 821 P.2d 34 (1991)) (emphasis added).

CIRCUMSTANTIAL EVIDENCE — PROXIMITY IN TIME: “That an employer’s actions were caused by an employee’s engagement in protected activities may be inferred from proximity in time between the protected action and the allegedly retaliatory employment decision.” Id. at 236 (referencing Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir. 2003) (internal citations and quotation marks omitted).

CIRCUMSTANTIAL EVIDENCE — CHANGE IN PERFORMANCE RATINGS: Circumstantial evidence that an employee experienced an abrupt downward change in performance reviews can support a reasonable inference of causation. See id. at 236-37.

[1-7] CAUSATION & THE PLAINTIFF’S BURDEN OF PRODUCTION AT SUMMARY JUDGMENT: “At the summary judgment stage, the plaintiff’s burden is one of production, not persuasion.” Id. at 235 (citing Scrivener, 181 Wn.2d at 445, 334 P.3d 541).

“Thus, to avoid summary judgment on causation, the employee must show only that a reasonable jury could find that retaliation was a substantial factor in the adverse employment decision.” Id. (internal citation omitted).

“Employees may rely on the following facts to show this: (1) the employee took a protected action, (2) the employer had knowledge of the action, and (3) the employee was subjected to an adverse employment action.” Id. (citing Wilmot, 118 Wn.2d at 69, 821 P.2d 18) (emphasis added). In this case, the 2nd element (i.e., the employer had knowledge of the action) was at issue.

[1-8] THE 3 STANDARDS OF CAUSATION: The Court considered three standards of causation: the “actual knowledge” standard; the “knew or suspected” standard; and the “general corporate knowledge” standard.

[1-8a] CAUSATION — “ACTUAL KNOWLEDGE” STANDARD: “Both the Court of Appeals and several federal courts require that the employer have actual knowledge of the employee’s protected action in order to prove causation.” Id. at 235 (internal citations omitted).

POLICY (ACTUAL KNOWLEDGE): “Because retaliation is an intentional act, an employer cannot retaliate against an employee for an action of which the employer is unaware.” Id. at 235-36.

ACTUAL KNOWLEDGE OF “LEGAL SIGNIFICANCE” NOT REQUIRED (ACTUAL KNOWLEDGE): But “[a] decision-maker need not have actual knowledge about the legal significance of a protected action.” Id. at 236 (emphasis added).

ACTUAL KNOWLEDGE THAT EMPLOYEE TOOK THE ACTION IS REQUIRED (ACTUAL KNOWLEDGE): “Instead, the decision-maker need have actual knowledge only that the employee took the action in order to prove a causal connection.” Id. (internal citations omitted) (emphasis added).

SURVIVING SUMMARY JUDGMENT (ACTUAL KNOWLEDGE): “The proper inquiry is whether the … evidence suggests a causal connection between the protected activity and the subsequent adverse action sufficient to defeat summary judgment.” Id. (internal citation omitted) (alteration in original).

[1.8b] CAUSATION — “KNEW OR SUSPECTED” STANDARD: “The ‘knew or suspected’ standard incorporates the ‘actual knowledge’ standard and also encompasses cases in which the employer suspects that an employee engaged in protected action.” Id. at 237 (trailing footnote omitted) (emphasis added).

PROTECTED ACTION & THE CASUSAL CONNECTION (KNEW OR SUSPECTED): This standard “[r]equires sufficient evidence to reasonably infer ‘both that [a supervisor] either knew or suspected’ that an employee took a protected action ‘and that there was a causal connection between this knowledge or suspicion and [the employee’s] termination.’ ” Id. (citing Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1113 (9th Cir. 2003)) (alteration in original).

EXAMPLE BASED ON MERE SUSPICION (KNEW OR SUSPECTED): “This standard applies, for example, when a supervisor has actual knowledge that a complaint was made but has only a suspicion regarding who made the complaint and subsequently takes an adverse employment action based on that suspicion.” Id.

SURVIVING SUMMARY JUDGMENT (KNEW OR SUSPECTED): “So long as an employee produces evidence from which a reasonable jury could infer that retaliation had taken place, this is sufficient to survive summary judgment.” Id. (citing Hernandez at 1114). “And while, a jury could believe the supervisor’s version of events rather than the employee’s, the jury must be permitted to consider and weigh evidence.” Id. (citing Hernandez at 1114).

[1-8c] CAUSATION — “GENERAL CORPORATE KNOWLEDGE” STANDARD: “Under this standard, the jury can still find retaliation in circumstances where the particular decision-maker denies actual knowledge of the plaintiff’s protected activities, ‘so long as … the jury concludes that an agent is acting explicitly or implicit[ly] upon the orders of a superior who has the requisite knowledge.’ ” Id. at 241, n. 6 (citing Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)) (alteration in original).

This standard “may be useful in situations where many individuals act collectively in a large company[ ] [.]” Id.

[1-9] RESTATING THE CAUSATION ISSUE (SUFFICIENT KNOWLEDGE): “At issue is whether [Cornwell] … presented enough evidence to show that her supervisors had sufficient knowledge that she had taken a protected action under the Washington Law Against Discrimination (WLAD), RCW 49.60.030.” Id. at 231 (emphasis added).

“Without establishing this knowledge, Cornwell cannot demonstrate a potential causal link between the adverse employment action taken against her and her protected activity.” Id. (emphasis added).

[1-10] MICROSOFT’S ARGUMENT (NO CAUSAL LINK): In this case, “Microsoft argues that Cornwell failed to present sufficient evidence to create an issue of material fact that there is a causal link between her prior lawsuit and the adverse employment action taken against her.” Id. at 235. However, the Court disagreed with Microsoft’s argument for the following reasons.

[1-11] COURT DECLINES TO ADDRESS THE “GENERAL CORPORATE KNOWLEDGE” STANDARD: In this case, the Court “decline[d] to address the “general corporate knowledge” standard, because “[w]hile the standard may be useful in situations where many individuals act collectively in a large company, it is not applicable here where Cornwell’s two supervisors had actual knowledge of her prior lawsuit.” Id. at 241, fn. 6.

[1-12] CORNWELL PASSED THE “ACTUAL KNOWLEDGE” STANDARD: In this case, “Microsoft argue[ed] that Blake and McKinley did not have actual knowledge of Cornwell’s suit because they did not know the specific nature of the lawsuit— i.e., that it involved an allegation of discrimination in violation of WLAD.” Id. at 236 (internal citation omitted).

The Court found that “Microsoft’s focus on the managers’ knowledge about the substance of the suit [was] … misplaced.” Id. It then determined the relevant rule regarding causal connections:

A decision-maker need not have actual knowledge about the legal significance of a protected action. Instead, the decision-maker need have actual knowledge only that the employee took the action in order to prove a causal connection.

Id. (emphasis added).

The Court concluded that “Cornwell has presented sufficient evidence to survive summary judgment under the actual knowledge standard.” Id. at 235 (emphasis added). The Court reasoned:

Both Blake and McKinley had actual knowledge that Cornwell filed the prior lawsuit against Microsoft. Shortly after leaning this, and over the objection of other managers, they gave Cornwell the lowest possible rating, and Cornwell was laid off.

Id. at 239 (emphasis added). Thus, Cornwell presented satisfactory circumstantial evidence meeting both the proximity-in-time and abrupt-change-in-performance tests.

[1-13] CORNEWELL PASSED THE “KNEW OR SUSPECTED” STANDARD: In this case, the Court determined that “Cornwell easily meets the ‘knew or suspected’ standard to survive summary judgment on her retaliation claim.” Id. at 238 (emphasis added). The Court reasoned as follows:

[C]ornwell had to prove that Microsoft knew or suspected that she had taken a prior legal action. As previously discussed, Cornwell produced sufficient evidence showing that both Blake and McKinley had actual knowledge that Cornwell had filed a previous lawsuit against Microsoft.

Id. at 237-38 (emphasis added).

[1-14] CORNWELL PRESENTED ENOUGH EVIDENCE TO CREATE A DISPUTE OF FACT ABOUT A CAUSAL LINK: The Court held that “Cornwell presented sufficient evidence to survive summary judgment on the issues of knowledge and causation.” Id. at 232 (emphasis added).

KNOWLEDGE: The Court found that “[t]he evidence tends to show that both of Cornwell’s supervisors had actual knowledge that Cornwell had previously engaged in protected activity before they subjected her to adverse employment action.” Id. at 232. “Both Blake and McKinley had actual knowledge that Cornwell filed the prior lawsuit against Microsoft.” Id. at 239.

CAUSATION: The Court found that “Cornwell presented sufficient evidence to create a dispute of fact about whether there was a causal link between her poor performance rating and termination and the previous lawsuit she filed against Microsoft.” Id. “Shortly after [both Blake and Mckinley] learn[ed] [about Cornwell’s protected activity], and over the objection of other managers, Blake and McKinley gave Cornwell the lowest possible review rating, and Cornwell was laid off. ” Id.

The Court concluded that “[i]n light of this evidence, the trial court erroneously granted summary judgment to Microsoft.” Id. The Court “reverse[d] [the Court of Appeals] and remand[ed] the case to the trial court for further proceedings consistent with this opinion.” Id.

ISSUE #2: Should the Court adopt the “knew or suspected” standard for evaluating retaliation claims? Id. at 238-39.

[2-1] POLICY/PURPOSE – THE KNEW OR SUSPECTED STANDARD: “The purpose behind the ‘knew or suspected’ test is to protect employees from retaliation to the fullest extent possible:

It seems clear to this Court that an employer that retaliates against an employee because of the employer’s suspicion or belief that the employee filed a[ ] … complaint has as surely committed a violation of [the statute] as an employer that fires an employee because the employer knows that the employee filed a[ ] … complaint. Such construction most definitely furthers the purposes of the Act generally and the anti-retaliation provision specifically.

Id. at 238 (citing Reich v. Hoy Shoe Co., 32 F.3d 361, 368 (8th Cir. 1994) (alteration in original).

[2-2] POLICY/PURPOSE – WLAD RELIES ON ENFORCEMENT BY PRIVATE INDIVIDUALS: “It is well recognized that WLAD … relies heavily on private individuals for its enforcement. This reliance would be unrealistic, to say the least, ‘if this court does not provide them some measure of protection against retaliation.’ ” Id. (internal citations and quotation marks omitted) (alteration in original).

[2-3] POLICY/PURPOSE – RESTRICTING APPLICATION OF WLAD’S ANTIRETALIATION PROVISIONS CREATES INCONSISTENCIES: Restricting the application of WLAD’s antiretaliation provisions to instances of actual knowledge results in inconsistent protection of employees:

It would be a strange rule, indeed, that would protect an employee discharged because the employer actually knew he or she had engaged in protected activity but would not protect an employee discharged because the employer merely believed or suspected he or she had engaged in protected activity.

Id. (citing Reich, 32 F.3d at 368).

[2-4] POLICY/PURPOSE – EMPLOYMENT DECISIONS CAN BE BASED ON SUSPICION OR BELIEF: “Employers are not limited to retaliation decisions based on information they actually know to be true.” Id. at 238 (internal citation omitted). “Instead, ‘common sense and experience establish that employers also make employment decisions on what they suspect or believe to be true.’ ” Id.

[2-5] THE PRIMA FACIE CASE OF RETALIATION: “[A[s long as ‘[a] reasonable jury could infer from [a plaintiff’s] evidence’ that the plaintiff’s protected activity was a substantial factor in the adverse employment decision, that plaintiff has satisfied his or her burden of establishing a prima facie case of retaliation.” Id. at 239 (internal citation omitted) (alteration within original internal quote).

[2-6] THE KNEW OR SUSPECTED STANDARD IS CONSISTENT WITH PURPOSES OF WLAD: In this case, the Court first determined that “construing WLAD ‘to protect employees from adverse employment actions because they are suspected of having engaged in protected activity is consistent with the general purposes of the Act and the specific purposes of the antiretaliation provisions.’ ” Id. at 238 (internal citation omitted) (emphasis in original).

[2-7] DEFENDANT MIRCORSOFT’S ARGUMENT: THE STANDARD LEADS TO STRICT LIABILITY, ELIMINATES CAUSATION ELEMENT, AND INVITES SPECULATION : The Court then considered that “Microsoft and amici curiae the Association of Washington Business and the Chamber of Commerce of the United States of America contest adoption of the ‘knew or suspected’ standard.” Id.

Accordingly, “[both] … argue[d] that adopting the standard leads to strict liability for employers, eliminates the causation element of a retaliation prima facie case, and invites speculation into the summary judgment phase.” Id. The Court found each of their arguments unpersuasive.

[2-7a] THE KNEW OR SUSPECTED STANDARD DOES NOT LEAD TO STRICT LIABILITY OR ELIMINATE THE CAUSATION ELEMENT: In this case, the Court found that “[t]he ‘knew or suspected’ test does not lead to strict liability or eliminate the requirement that a retaliation be intentional.” Id. at 238.

“Instead, the test eliminates the right of employers to intentionally retaliate against employees that they suspect but do not actually know to have taken protected action.” Id.

“An employee must still produce sufficient evidence that his or her protected activity was a substantial factor in the employer’s decision to take adverse action against the employee.” Id. (citing Allison, 118 Wn.2d at 96, 821 P.2d 34) (emphasis added). Accordingly, the causation element is preserved.

[2-7b] THE KNEW OR SUSPECTED STANDARD DOES NOT INVITE SPECULATION INTO THE SUMMARY JUDGMENT PHASE: In this case, the Court asserted that “the [‘knew or suspected’] standard requires the production of evidence; mere speculation will not suffice to defeat summary judgment.” Id. at 238-39 (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359-60, 753 P.2d 517 (1988) (“The ‘facts’ required by CR 56(e) to defeat a summary judgment motion are evidentiary in nature. Ultimate facts or conclusions are insufficient. Likewise, conclusory statements of fact will not suffice.” (citation omitted) ) (internal quotation marks omitted) (emphasis added).

The Court concluded that “as long as ‘[a] reasonable jury could infer from [a plaintiff’s] evidence’ that the plaintiff’s protected activity was a substantial factor in the adverse employment decision, that plaintiff has satisfied his or her burden of establishing a prima facie case of retaliation.” Id. at 239 (internal citation omitted) (alteration, within internal quote, in original ) (emphasis added).

[2-8] THE COURT ADOPTS THE “KNEW OR SUSPECTED” STANDARD: “For these [above] reasons, [the Court] … adopt[ed] the “knew or suspected” standard because it furthers WLAD’s purpose of protecting employees from retaliation.” Id. at 239.

NOTABLES & IMPLICATIONS:

(1) CIRCUMSTANTIAL EVIDENCE: THE PROXIMITY-IN-TIME CLOCK STARTS WHEN WRONGDOER LEARNS OF PROTECTED ACTIVITY: “To properly evaluate whether there is sufficient circumstantial evidence of retaliation, we must focus on the proximity between when [the actual wrongdoer(s)] … learned of the [protected activity] … and the adverse employment actions that they subsequently took.” See id. at 241, n. 10.

In this case, Blake and McKinley, as wrongdoers, learned about Cornwell’s protected activity when Blake and McKinley (i.e., wrongdoers) had actual knowledge that Cornwell filed the prior lawsuit against Microsoft; not when Cornwell actually filed the prior lawsuit against Microsoft. See id.

PROXIMITY IN TIME: A FEW MONTHS IS ENOUGH TO GIVE RISE TO INFERENCE OF RETALIATORY MOTIVE: Moreover, a few months time between when the wrongdoers “learned of the lawsuit and the adverse employment actions that they subsequently took” is considered “enough to give rise to a reasonable inference of retaliatory motive. Id. at 241, n. 10. In this case:

Cornwell told Blake about the lawsuit in late 2011. In July 2012, Blake and McKinley rated Cornwell as a “5,” and Cornwell was laid off in September 2012.

Id. at 241, n. 9. These timeframes were enough for Cornwell to establish a reasonable inference of retaliatory motive.

(2) THE DISSENT (GORDON MCCLOUD, J.): MAJORITY’S ANALYSIS IS OVER-INCLUSIVE AS TO TORTS & UNDERINCLUSIVE AS TO GENDER DISCRIMINATION: In this case, Judge Gordon McCloud dissented and both agreed and disagreed with the majority. The dissent agreed as follows:

[I] agree with the majority’s main conclusion that a plaintiff can show retaliatory discharge in violation of the Washington Law Against Discrimination (WLAD), RCW 49.60.030, without showing that the employer had actual knowledge of the plaintiff’s prior protected activity. A plaintiffs showing that the employer suspected that the plaintiff had previously engaged in WLAD-protected activity is enough to establish the causation requirement of a WLAD retaliatory discharge claim.

Id. at 239. However, the dissent disagreed with the majority as follows:

But I disagree with the majority’s application of that legal standard to the facts of this case. The majority identifies nothing in the record showing that Dawn Cornwell’s current supervisors knew or suspected that her prior lawsuit involved the WLAD-prohibited activity of sex discrimination.

Id. (emphasis added).

The dissent reasoned that the majority’s “analysis creates a standard that is both significantly over-inclusive in certain respects and significantly under-inclusive in other respects.” Id. at 239-240 (emphasis added).

DISSENT ASSERTS MAJORITY’S STANDARD IS OVER-INCLUSIVE: The dissent argued that “the majority’s analysis is [incorrectly] over-inclusive because it assumes that a female employee’s lawsuit about a male supervisor and a review score could not have alleged anything but sex discrimination.” Id. at 240. However, “[b]esides common law torts, such a lawsuit could allege any number of statutory retaliation claims that do not implicate the WLAD.” Id.

DISSENT ASSERTS MAJORITY’S STANDARD IS UNDERINCLUSIVE: Here, the dissent essentially argued that “the majority’s approach is also under-inclusive[,]” because sex discrimination in employment could also include “female supervisors vis-a-vis female or male employees.” Id. at 241.

(3) THE MAJORITY’S REBUTTAL TO THE DISSENT: DISSENT’S ANALYSIS IS TOO LIMITED & HYPOTHETICAL CLAIMS ARE SURPLUSAGE: In this case, the Court majority rebutted the dissent as follows:

Contrary to the dissent’s criticisms, it is because of all of the facts here discussed, not merely because Cornwell’s prior suit involved a male supervisor, that her claim survives summary judgment. Further, also despite the dissent’s assertions, we know that Cornwell’s prior suit related to sex discrimination; we do not make (or need to make) the “over-inclusive” assumption that all suits by a female employee against a male supervisor involve sex discrimination. Accordingly, the dissent’s list of hypothetical claims that might have been brought is surplusage.

Id. at 241 (internal citations omitted) (emphasis in original).

(4) THE “KNEW OR SUSPECTED” STANDARD: APPLIED IN 9TH CIRCUIT: “The ‘knew or suspected’ standard has been applied by the United States Court of Appeals, Ninth Circuit, as well as by other federal courts in the OSHA context.” Id. at 241, n. 11 (“See, e.g., Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107 (9th Cir. 2003); Reich, 32 F.3d 361″).

(5) UNLAWFUL RETALIATION: ADVERSE EMPLOYMENT ACTIONS: POOR PERFORMANCE RATINGS: For purposes of proving a claim of unlawful retaliation, a poor employment performance evaluation rating that prevents an employee “from being considered for future rehiring … qualifies as an adverse employment action.” See id. at 241, n. 4 (referencing Jin Zhu v. N. Cent. Educ. Serv. Dist. — ESD 171, 189 Wn.2d 607 , 619, 404 P.3d 504 (2017) (“An employment action is adverse if it is harmful to the point that it would dissuade a reasonable employee from making complaints of … retaliation.”) (internal quotation marks and citation omitted).

(6) UNLAWFUL RETALIATION (WLAD): ISSUE OF 1ST IMPRESSION: QUANTUM OF EMPLOYMENT KNOWLEDGE: This WLAD unlawful-retaliation case presented the Washington State Supreme Court with an issue of first impression, as follows:

At issue here is the quantum of employer knowledge about the employee’s prior protected activity. We have yet to address this question in a case.

Id. at 235.

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July 7, 2021May 26, 2022

Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79 (Wash. 1991)

This is a case summary of Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79 (Wash. 1991). Subjects include:

» RCW 49.60.210

» RETALIATORY DISCHARGE

» CAUSATION

» SUBSTANTIAL-FACTOR APPROACH

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**Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79 (Wash. 1991)**

case summarY – 7 PRIMARY Facts:

[1] Allison sued the Housing Authority of the City of Seattle [(hereinafter, ‘Housing Authority’)], claiming, among other things, that the Housing Authority retaliated against here for filing an age discrimination complaint when she was released in a reduction in force.

[2] In a special verdict form, a jury found that the Housing Authority had discriminated and/or retaliated against Allison when she was laid off.

[3] The Housing Authority appealed to the Court of Appeals, claiming that the jury instruction on proximate causation for a retaliation claim was erroneous.

[4] That jury instruction required Ms. Allison to show that her discharge was motivated “to any degree by retaliation.”

[5] On appeal, the Washington State Court of Appeals Division I reversed and remanded the case, holding that the jury instruction should have required Allison to show that, but for filing a discrimination complaint, she would not have been discharged.

[6] [The WA Supreme Court] declined to adopt either the ‘but for’ standard advanced by the Court of Appeals or the ‘to any degree’ standard used by the trial court.

[7] [The WA Supreme Court] adopt[ed] an intermediate standard for causation, a ‘substantial factor’ approach, and remanded this case to the trial court.

Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79 (Wash. 1991) (internal citations omitted).

ISSUE #1: What is the appropriate standard of causation when an employee brings a claim of retaliatory discharge under RCW 49.60.210?

[1-1] WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): The Washington Law Against Discrimination (WLAD) “contains a sweeping policy statement strongly condemning many forms of discrimination.” Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79, 85 (Wash. 1991) (citing RCW 49.60.010).

[1-2] WLAD REQUIREMENT OF LIBERAL CONSTRUCTION: The WLAD requires that it “shall be construed liberally for the accomplishment of the purposes thereof.” Id. at 85-86 (citing RCW 49.60.020).

[1-3] QUESTIONS OF STATUTORY CONSTRUCTION: In resolving a question of statutory construction, the Court will “adopt the interpretation which best advances the legislative purpose.” Id. at 86 (internal citations and quotation marks omitted).

[1-4] TITLE VII DOES NOT REQUIRE LIBERAL CONSTRUCTION: Federal case law “is not unequivocal, and is only persuasive authority.” Id. at 91. And “Title VII differs from RCW 49.60 in that Title VII does not contain a provision which requires liberal construction for the accomplishment of its purposes.” Id. at 88 (hyperlinks added).

[1-5] THE FOUR LEGAL ARGUMENTS: The Court evaluated the issue based on several argument categories as follows:

(1) arguments based on the language of RCW 49.60;

(2) arguments based on Federal and Washington state case law;

(3) arguments based on public policy considerations; and

(4) the Wilmot case.

[1-6] THE LANGUAGE OF RCW 49.60: The Court determined that the “language of RCW 49.60 supports a more liberal standard of causation than the ‘but for’ standard adopted by the Court of Appeals. Id. at 85 (hyperlink added).

The Housing Authority utilized Title VII cases for analogy and attempted to argue theoretically higher causation requirements under RCW 49.60.180 (discrimination) should also be applied to RCW 49.60.180 case” and, thus, such a standard “may be illusory”; that Title VII differs from RCW 49.60 because it “does not contain a provision which requires liberal construction for the accomplishment of its purposes”; and that “the ‘but for’ standard of causation adopted by the Court of Appeals in the instant case would negatively affect enforcement of WLAD. Id. at 88.

[1-7] THE FEDERAL & STATE CASE LAW: The Court considered various case law offered by the parties at both the federal and state level. It then concluded that federal case law does not give clear support for the adoption of a stringent “but for” standard of causation, and state case law does not directly address the issue of whether the liberal “to any degree” language should be used in jury instructions; and the Court has never approved the “to any degree” standard. Id. at 91.

“Because federal law is not unequivocal, and is only persuasive authority, we adopt a standard that best corresponds with the language and policies contained in this state’s antidiscrimination law.” Id. at 91.

[1-8] THE PUBLIC POLICY CONSIDERATIONS: The Court evaluated policy considerations at opposite ends of the dichotomy — the “but for” test on the one end and the “to any degree” test on the other.

It then reasoned that competing policy considerations dictate that the most sensible approach is to adopt an intermediate standard test–the “substantial factor” approach–generally applied in multiple causation cases. Id. at 95.

This would address the issue of both legitimate and illegitimate motives that often lurk behind discriminatory or retaliatory discharge while preventing employees from abusing the protection that the–“to any degree”–lower standard of causation would give them.

[1-9] THE WILMOT CASE: The Court then applied the public policy considerations that it expressed in Wilmot v. Kaiser Aluminum & Chemical Corp., 118 Wn.2d 46, 821 P.2d 18; a case in which the court applied the “substantial factor” approach to a retaliation claim under RCW 51.48.025 for filing a workers’ compensation claim.

Particularly, the court analogized Wilmot to the instant case by explaining (a) that in both cases, the relevant statutes prohibit an employer from retaliating against an employee for opposing discrimination; and (b) that under both statutes, “employees are at a distinct disadvantage in a retaliation case because they must prove causation without the benefit of the employer’s own knowledge of the reason for the discharge” — “an employee does not have the access to proof that an employer usually has.” Id. at 96.

[1-10] CAUSATION REQUIRES SHOWING RETALIATION WAS SUBSTANTIAL FACTOR: The Court in this case held that a “plaintiff bringing suit under RCW 49.60.210 must prove causation by showing that retaliation was a substantial factor motivating the adverse employment decision.” Id. at 96 (hyperlink added).

[1-11] REMAND FOR RETRIAL: It then remanded the cause to the trial court for retrial on the issue of whether age discrimination and/or retaliation caused Allison’s discharge.

ISSUE #2: Is the evidence in this case insufficient to support an inference that discrimination and/or retaliation caused Allison’s discharge?

(The Court evaluated an unpublished portion of the Court of Appeals’ opinion in this case)

[2-1] TESTIMONIAL EVIDENCE: Testimonial evidence that supports an inference of discrimination and/or retaliation, when looked at in a light most favorable to the plaintiff, may be sufficient to allow a case to go to the jury. See id. at 98.

[2-2] EMPLOYER ARGUMENT: The employer (Housing Authority) in this case argued that there was insufficient evidence to support an inference that discrimination and/or retaliation caused Allison’s discharge. Id. at 96.

[2-3] COURT CONSIDERED TRIAL COURT EVIDENCE REGARDING DISCRIMINATION CLAIM: The Court considered the following trial court evidence regarding Allison’s discrimination claim: (a) Allison’s manager made remarks about “little old ladies”; (b) the manager became hostile towards Allison when she learned Allison’s true age of 62; (c) after the manager learned Allison was in her sixties, her ratings of Allison declined; and (d) the manager refused Allison’s request for additional work. Id. at 97.

[2-4] COURT CONSIDERED TRIAL COURT EVIDENCE REGARDING RETALIATION CLAIM: The Court considered the following trial court evidence regarding Allison’s retaliation claim: (a) Allison’s manager gave her an allegedly unwarranted reprimand; (b) after Allison filed her suit, the manager gave Allison her lowest performance evaluation; and (c) an “aging checklist” was pinned on Allison’s cubicle after she filed her discrimination suit. Id.

[2-5] COURT OF APPEALS WAS CORRECT: The Court held that “based on the evidence listed above, the Court of Appeals was correct in its conclusion that there was thin, but sufficient testimony for this case to go to the jury.”

The Court also addressed attorney’s fees.

NOTABLES & IMPLICATIONS:

ATTORNEY FEES

(1) RCW 49.60.030(2) has been interpreted as granting parties a right to attorney fees on appeal. Id. at 98 (citing Fahn v. Cowlitz Cy., 95 Wn.2d 679, 685, 628 P.2d 813 (1981); Pannell v. Food Servs. of Am., 61 Wn.App. 418, 449-50, 810 P.2d 952 (1991)).

CAUSATION

(2) In 1895, the civil rights act was amended to add the broad classification “public places.” Id. (internal citations omitted).

MCDONNELL DOUGLAS APPROACH

(3) Under the McDonnell Approach–McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973)–“the plaintiff must establish a prima facie case, and then the burden of production shifts to the defendant to state a legitimate reason for the employment decision; the plaintiff can attempt to prove that the employer’s offered reason is a pretext.” Id. at 88-89 (internal citations omitted).

(4) Under the McDonnell Approach, “the burden of persuasion remains at all times upon the pliantiff/employee” in a discrimination or retaliation claim. Id. at 90, 93 (citing Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 363, 753 P.2d 517 (1988); and citing Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 821 P.2d 18 (1991), respectively).

(5) Under the McDonnell approach, the “federal cases provide only guidance” and “even the McDonnell test should not be rigidly applied. Id. (citing Grimwood, 110 Wn.2d at 362, 753 P.2d 517 (1988)).

WLAD GENERALLY

(6) The WLAD “does not provide any criteria for establishing a discrimination case.” Id. at 88 (citing Grimwood, 110 Wn.2d at 361).

(7) The WLAD “contains a sweeping policy statement strongly condemning many forms of discrimination.” Id. at 85 (citing RCW 49.60.010).

(8) The WLAD requires that “this chapter shall be construed liberally for the accomplishment of the purposes thereof.” Id. at 85-86 (citing RCW 49.60.020).

(9) The enforcement of the WLAD “depends in large measure on employee’s willingness to come forth and file charges or testify in discrimination cases. Id. at 86.

(10) Plaintiffs bringing discrimination cases assume the role of a private attorney general, vindicating a policy of the highest priority.” Id. (internal citations and quotation marks omitted).