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

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

» FRAUD

» MOTIONS FOR RECONSIDERATION

» PROMISSORY ESTOPPEL

» SELF-EVALUATIONS

» THE MCDONNELL DOUGLAS FRAMEWORK — PRETEXT

» WRONGFUL TERMINATION

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

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

(2) discrimination.

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

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

case summarY – 19 PRIMARY Facts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EDITORS NOTE: as of the date of this article, RCW 49.60.180 includes the following protected classes: age*, sex*, marital status*, sexual orientation*, race*, creed*, color, national origin*, citizenship or immigration status, honorably discharged veteran or military status*, or the presence of any sensory, mental, or physical disability* or the use of a trained dog guide* or service animal* by a person* with a disability.

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

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

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

(1) belongs in a protected class;

(2) was discharged;

(3) was doing satisfactory work; and

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

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

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

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

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

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

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

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

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

[1-2c] STEP 3 — ESTABLISHING PRETEXT:

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

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

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

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

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

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

» If Plaintiff Shows Pretext, Then Case Must Go to Jury; If Not, Then Employer Entitled to Dismissal: “If a plaintiff produces evidence at this third stage to counter the employer’s reasons, the case must be submitted to the jury; if not, the employer is entitled to a dismissal.” Id. (citing Carle, 65 Wash.App. at 102, 827 P.2d 1070).

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

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

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

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

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

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

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

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

5. Need More Than Assertion of Good Performance to Counter Assertion of Poor Performance: “An employee’s assertion of good performance to contradict the employer’s assertion of poor performance does not give rise to a reasonable inference of discrimination.” Id. (citing Parsons v. St. Joseph’s Hosp., 70 Wash.App. 804, 811, 856 P.2d 702 (1993)).

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

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

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

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

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

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

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

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

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

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

(1) representation of an existing fact;

(2) materiality;

(3) falsity;

(4) speaker’s knowledge of its falsity;

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

(6) plaintiff’s ignorance of falsity;

(7) reliance;

(8) right to rely; and

(9) damages.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[3-2] STRIKING AFFIDAVITS:

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

COURTS ANALYSIS:

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

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

[3-3] STRIKING DECLARATIONS:

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

COURTS ANALYSIS:

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

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

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

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

NOTABLES & IMPLICATIONS:

PLEADINGS

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

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

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

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

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

PROMISSORY ESTOPPEL

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

(1) a promise which

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

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

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

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

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

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

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

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

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

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April 27, 2022May 26, 2022

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

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

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

» PUNITIVE (EXEMPLARY) DAMAGES

IMPORTANT: This article is for informational purposes only and is based upon my point of view. This is not a resource for the actual and complete appellate court opinion. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.

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

case summary – 7 Facts:

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

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

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

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

[5] Defendants appealed.

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

[7] We now reverse.

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

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

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

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

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

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

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

[1-5] FEDERAL CIVIL RIGHTS ACT:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[2-1] FEDERAL LAW

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

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

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

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

[2-2] WASHINGTON LAW

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

∴ Concurring Court’s Analysis:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. Regarding Federal Law:

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

Dailey, 129 Wn.2d at 580.

2. Regarding WA Law:

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

Dailey, 129 Wn.2d at 582

3. Regarding Retroactive Application of 1993 Amendments:

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

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

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July 8, 2021May 26, 2022

Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979)

This is a case summary of Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979). Primary subjects include, but are not limited to the following:

» PROTECTED CLASSES (PERCEIVED DISABILITY)

» TERMINATION BASED UPON PERCEIVED (NONEXISTENT) DISABILITY

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**Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979)**

CASE SUMMARY – 11 Facts:

[1] Barnes was hired by WNGC in the early part of 1975 as a ‘helper’ on the natural gas line.

[2] He alleges that after approximately one month’s employment at WNGC his employment was terminated because of an erroneous belief on WNGC’s part that he suffered from epilepsy.

[3] Barnes contends that he does not now, nor did he ever have, epilepsy.

[4] He alleges that his termination by WNGC was based upon a perceived but nonexistent handicap in violation of RCW 49.60.180.

[5] After filing its answer and affirmative defenses, a motion for judgment on the pleadings was made by WNGC.

[6] The trial court entered judgment dismissing the action, holding: (1) That those portions of RCW 49.60 which seek to prohibit discrimination on the basis of ‘any sensory, mental, or physical handicap’ are unconstitutionally vague and, therefore, void and alternatively, (2) That plaintiff is without standing to bring and action against defendant pursuant to the provisions of RCW 49.60.

[7] After the determination by the trial court, the Supreme Court in Chicago, Milwaukee, St. Paul & P.Ry v. Human Rights Comm’n, 87 Wash.2d 802, 557 P.2d 307 (1976), held that provision of the Act pertinent here not unconstitutionally vague.

[8] The unconstitutionality of the statute is not argued by WNGC, except [the Court is] … urged to reverse the ruling that the statute is not unconstitutionally vague for the reasons stated in the respondent Milwaukee R.R.’s brief in that case.

[9] The Court refused the invitation.

[10] The Court held that the [Washington State Human Rights Commission] regulation WAC 162.22.040(1)(b)(iii) [currently WAC 162-22-020] is within the scope of the [Washington Law Against Discrimination], and Barnes has standing to maintain this action.

[11] The Court reversed and remanded to the trial court for further proceedings consistent with this opinion.

Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979) (internal citations omitted) (hyperlink added).

ISSUE #1: Under the WLAD, may a plaintiff have standing to sue their employer for disability discrimination when based on perceived disability?

[1-1] UNFAIR PRACTICES OF EMPLOYERS: RCW 49.60.180 declares, in part, that it is an unfair practice for any employer “to discharge or bar any person from employment because of … the presence of any sensory, mental, or physical handicap.” Barnes v. Washington Natural Gas Co., 22 Wn.App. 576, 578 (Div. I 1979).

[1-2] WASHINGTON ADMINISTRATIVE CODE: “The Washington State Human Rights Commission (The Commission) … has adopted regulation WAC 162-22-040 [(currently WAC 162-22-020)] as follows:

(1) For the purpose of determining whether an unfair practice under RCW 49.60.180-.190, or -.200 has occurred:

(a) A condition is a ‘sensory, mental or physical handicap’ if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question, or was denied equal pay for equal work, or was discriminated against in other terms and conditions of employment, or was denied equal treatment in other areas covered by the statutes. In other words, for enforcement purposes a person will be considered to be Handicapped by a sensory, mental or physical condition if he or she is Discriminated against because of the condition and the condition is abnormal. (emphasis in original.)

(b) ‘The presence of a sensory, mental, or physical handicap’ includes, but is not limited to, circumstances where a sensory, mental, or physical condition:

(i) is medically recognizable or diagnosable;

(ii) exists as a record of history; or

(iii) is perceived to exist, whether or not it exists in fact.

(2) An example of subsection (1)(b)(ii) is a record showing that the worker had a heart attack five years ago. An example of subsection (1)(b)(iii) is a rejection of a person for employment because he had a florid face and the employer thought that he had high blood pressure.”

Id. at 579 (hyperlinks added).

“The Commission … had been granted broad discretion and responsibility for administration of the Act. We must rely upon and give weight to the Commission’s interpretations of the statute reflected in its regulations.” Id. at 581.

[1-3] JUDICIAL REVIEW OF REGULATIONS: “There is a presumption that the regulation is valid, and the burden of challenging it is upon the party attacking it.” Id. at 580 (referencing Weyerhaeuser Co. v. Department of Ecology, 86 Wash.2d 310, 314, 545 P.2d 5 (1976)).

The Court’s “review in such situations generally is limited to determining whether the regulation is reasonably consistent with the statute it purports to implement.” Id. (citing Weyerhaeuser Co., 86 Wn.2d at 314).

[1-4] LEGISLATIVE INTENT: The Court initially considered legislative intent to resolve the issue presented and reasoned, “It is the intent of the legislature to prohibit discrimination in employment against a person with a sensory handicap.” Id. at 582.

But “it would be an anomalous situation if discrimination in employment would be prohibited against those who possess the handicap but would not include within the class a person ‘perceived’ by the employer to have the handicap.” Id.

[1-5] ESSENCE OF EMPLOYMENT DISCRIMINATION: The Court then defined the essence of unlawful employment discrimination as “the application of unreasonable generalizations about people to the hiring, promotion and discharge of workers.” Id.

It considered the history of disability as a protected class, finding, “race, religious creed and sex are among the prohibited criteria for judging workers’ qualifications because of the prejudgments often made on the basis of these characteristics.” Id.

The Court explained that proscriptions of discrimination against handicapped persons were added to WLAD in 1973 on account of “similar prejudgments often made about persons afflicted with sensory, mental or physical handicaps, such as epilepsy.” Id.

[1-6] LEGISLATIVE PURPOSE: The Court also evaluated legislative purpose by first declaring that a person “who is perceived to be afflicted with epilepsy may be discriminated against because of his or her perceived handicap even though that perception turns out to be false in either case.” Id

The Court reasoned that “it would defeat legislative purpose to limit the handicap provisions of the law against discrimination to those who are actually afflicted with a handicap, such as epilepsy, and exclude from its provision those perceived as having such condition.” Id.

The Court went on to declare that “prejudice in the sense of a judgment or opinion formed before the facts are known is the fountainhead of discrimination engulfing medical disabilities which prove on examination to be unrelated to job performance or to be nonexistent.” Id. It determined that the intent of the law is to “protect workers against such prejudgment based upon insufficient information.”

The Court then found that “the law’s application, therefore, should not be limited to those who actually have handicaps, excluding those who are discriminated against in the same way because they are only thought to have handicaps.” Id.

[1-7] PROTECTED CLASS: Next, the Court essentially provided a broad definition of disability as a protected class: “The class protected by the statute is those persons whom the employer discharges or intends to discharge because he believes the person is afflicted with a ‘mental, sensory, or physical handicap.'” Id. at 583 (emphasis added). This definition apparently includes both actual and perceived mental, sensory, or physical handicaps.

[1-8] APPLICATION OF POLICY: The Court applied public policy to the instant case and found that WLAD’s policy to “eliminate and prevent discrimination in employment requires protecting from discriminatory practices both those perceived to be handicapped as well as those who are handicapped.” Id.

[1-9] EMPLOYER’S INTERESTS: Before reaching its holding, the Court also considered the employer’s interests reasoning that the employer was fully protected, because [WLAD] provides “that the prohibition against discrimination because of such handicaps shall not apply if the particular disability prevents the proper performance of the particular worker involved.” Id. (citing RCW 49.60.180(1)).

[1-10] BARNES HAS STANDING BASED ON PERCEIVED DISABILITY (REVERSED & REMANDED): The Court held that Barnes had standing to maintain his action of disability discrimination under WLAD based on perceived disability; and it reversed and remanded the cause to the trial court for further proceedings consistent with its opinion.

ISSUE #2: Is WAC 162-22-040(1)(b)(iii) valid?

[2-1] PRESUMPTION OF VALIDITY: There is a presumption that the regulation is valid, and the burden of challenging it is upon the party attacking it. Id. at 580 (internal citation omitted). The Court’s review in such situation generally is limited to determining whether the regulation is reasonably consistent with the statute it purports to implement. Id. (internal citation omitted).

The Washington State Human Rights Commission has been granted broad discretion and responsibility for administration of the WLAD. Id. at 581. The Court must rely upon and give weight to the Commission’s interpretations of the statute reflected in its regulations. Id. (internal citation omitted).

[2-2] SEE ANALYSIS UNDER ISSUE #1, ABOVE.

[2-3] REGULATION IS WITHIN SCOPE OF WLAD (REVERSED & REMANDED): The Court held that the Washington State Human Rights Commission regulation WAC 162.22.040(1)(b)(iii) was within the scope of the Washington Law Against Discrimination, and it reversed and remanded the cause to the trial court for further proceedings consistent with its opinion.

NOTABLES & IMPLICATIONS:

PUBLIC POLICY

(1) “Public policy, expressed by the [Washington Law Against Discrimination] to eliminate and prevent discrimination in employment requires protecting from discriminatory practices both those perceived to be handicapped as well as those who are handicapped.” Id. at 583.

WASHINGTON STATE HUMAN RIGHTS COMMISSION

(2) “The Washington State Human Rights Commission (referred to as the Board in the Act) is the agency established by the Washington State Law Against Discrimination (the Act) ‘with powers with respect to elimination and prevention of discrimination in employment … because of … the presence of any sensory, mental, or physical handicap; and the (commission) established hereunder is hereby given general jurisdiction and power for such purposes.’ RCW 49.60.010.” Id. at 583, n. 2 (hyperlinks added).

“The regulations have been adopted by the Commission to implement its powers to administer the Act pursuant to RCW 49.60.120: ‘The (commission) shall have the functions, power, and duties: … (3) To adopt, promulgate, amend, and rescind suitable rules and regulations to carry out the provisions of this chapter, and the policies and practices of the (commission) in connection therewith.'” Id. (hyperlink added).

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July 7, 2021May 26, 2022

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

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

» UNLAWFUL RETALIATION

» CAUSATION

» THREE ASSOCIATED EVALUATION STANDARDS:

(1) “Actual Knowledge” Standard;

(2) “Knew or Suspected” Standard, and

(3) “General Corporate Knowledge” Standard.

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

CASE SUMMARY – 20 Facts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

procedural HISTORY – 8 facts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Id. at 234-35 (emphasis added).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Id. (emphasis added).

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

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

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

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

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

Id. at 237-38 (emphasis added).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NOTABLES & IMPLICATIONS:

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

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

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

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

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

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

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

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

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

Id. (emphasis added).

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

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

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

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

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

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

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

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

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

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

Id. at 235.

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July 1, 2021May 26, 2022

Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401 (Wash. 1985)

This is a case summary of Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401 (Wash. 1985). Primary subjects include the following:

» SEXUAL HARASSMENT (HOSTILE WORK ENVIRONMENT)

» IMPUTING HARASSMENT TO EMPLOYER

» CONSTRUCTIVE DISCHARGE

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**Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401 (Wash. 1985)**

CASE SUMMARY – 16 Facts:

[1] This case of first impression in this state involves sexual harassment at the work place.

[2] Two female employees brought suit against their employer, Georgia-Pacific Corporation, alleging sex discrimination in violation of RCW 49.60 and the tort of outrage [also known as intentional infliction of emotional distress].

[3] From October 1979 until January 1982, … a male co-worker, on several occasions ‘would place his hands on [one of the plaintiff’s] hips and rub his crotch across her back side as he was passing[,] … [stared] at her breasts[,] … placed his hand on her right breast without any welcome or invitation … and approach[ed] her from behind and grabbing her buttocks with his hands.’

[4] As early as November 1979 the plant manager knew this male employee was ‘using abusive language around female employees’ and had ‘touched or fondled’ this plaintiff and another female employee ‘in an unwanted sexual way.’ No corrective or disciplinary action was taken.

[5] Complaints of the co-worker’s ‘other intimidating behavior’ toward this plaintiff were lodged again in mid-1981, this time to a plant superintendent who acknowledged that other female employees, including the other plaintiff in this action, were also having problems with this male co-worker.

[6] Shortly thereafter, this plaintiff began to hear threats and complaints concerning her job performance purportedly coming from the plant manager.

[7] The other plaintiff had been working for the employer for only a month when the same male co-worker began to press himself against her in the same manner as he passed by her.

[8] A complaint was lodged with the plaint superintendent.

[9] The male co-worker would also stare at her ‘in a sexually intimidating way, follow her about the plant, in such a way that it intimidated her, [and] interfered with her work performance.’

[10] She tried to avoid him and informed the plant manager ‘who did nothing.’ She and yet another female employee confronted the plant manager about this ‘continued sexual harassment.’

[11] The male co-worker was finally transferred to another shift, but his course of intimidation continued. In addition, other employees, including a supervisor, acted ‘in an intimidating fashion’ toward this plaintiff because of her complaints.

[12] Not until February 1982 was the male co-worker given a 3-day suspension ‘based on his prior acts of sexual harassment.’

[13] One of the plaintiffs suffered ‘severe emotional anguish and distress demonstrated by physical symptoms’ of various kinds. She resigned in December 1981 after working less than 9 months.

[14] The other plaintiff was ’emotionally and psychologically injured’ and likewise demonstrated physical manifestations of ‘severe emotional distress.’ She resigned in October 1982.

[15] The trial court found that as a result of the foregoing acts and inactions, along with other similar ones, a hostile and intimidating work environment was created and it was this which proximately caused severe emotional distress to the plaintiffs.

[16] The trial court also found that these facts constituted the tort of outrage but that they did not permit a finding that either of the plaintiffs were constructively discharged from their jobs.

Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401 (Wash. 1985) (internal citations omitted) (hyperlink added).

ISSUE #1: Did the trial court err in concluding that the employer was liable for sexual discrimination in violation of RCW 49.60?

[1-1] PROMPT & ADEQUATE CORRECTIVE ACTION: Under RCW 49.60, “an employer may ordinarily avoid liability for sexual harassment by taking prompt and adequate corrective action when it learns that an employee is being sexually harassed.” Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 408 (Wash. 1985) (hyperlink added).

[1-2] HOSTILE WORK ENVIRONMENT: “To establish a work environment sexual harassment case … an employee must prove the existence of the following [four] elements[ ][:]” (1) the harassment was unwelcome; (2) the harassment was because of sex; (3) the harassment affected the terms or conditions of employment; and (4) the harassment is imputed to the employer. Id. at 406-07 (footnote omitted).

[1-2a] THE HARASSMENT WAS UNWELCOME: “In order to constitute harassment, the complained of conduct must be unwelcome in the sense that the plaintiff-employee did not solicit or incite it, and in the further sense that the employee regarded the conduct as undesirable or offensive.” Id. at 406.

[1-2b] THE HARASSMENT WAS BECAUSE OF SEX: “The question to be answered here is: would the employee have been singled out and caused to suffer the harassment if the employee had been of a different sex? This statutory criterion requires that the gender of the plaintiff-employee be the motivating factor for the unlawful discrimination.” Id.

[1-2c] THE HARASSMENT AFFECTED THE TERMS OR CONDITIONS OF EMPLOYMENT: “Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id. “The harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id.

TOTALITY OF THE CIRCUMSTANCES TEST: “Whether the harassment at the workplace is sufficiently severe and persistent to seriously affect the emotional or psychological well being of an employee is a question to be determined with regard to the totality of the circumstances.” Id. at 406-07

[1-2d] THE HARASSMENT IS IMPUTED TO THE EMPLOYER:

WHERE OWNER, MANAGER, PARTNER, OR CORPORATE OFFICER HARASSES: “Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof.” Id. at 407.

WHERE SUPERVISORS OR CO-WORKERS HARASS: “To hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer[:]

(a) authorized, knew, or should have known of the harassment and

(b) failed to take reasonably prompt and adequate corrective action.

Id. (emphasis and paragraph formatting added).

SHOWN THROUGH COMPLAINTS/PERVASIVENESS AND INSUFFICIENT REMEDIAL ACTION: “This may be shown by proving[:]

(a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the work place as to create an inference of the employer’s knowledge or constructive knowledge of it and

(b) that the employer’s remedial action was not of such nature as to have been reasonably calculated to end the harassment.

Id. (paragraph formatting and emphasis added).

[1-3] ONLY FOURTH ELEMENT (HARSSMENT IMPUTED TO EMPLOYER) WAS AT ISSUE: The Court only addressed the fourth element by reviewing the trial court’s finding as follows:

In the case at bar, [the employer] knew or should have known that [the male co-worker’s] unwelcome sexual advances and other verbal or physical conduct of his [sic] sexual nature were unreasonably interfering with [the plaintiffs’] work performance and/or created an intimidating, hostile or offensive working environment. Further, no reasonable immediate or appropriate corrective action was taken to remedy the situation.

Id. at 407 (citing Trial Court Finding of fact 54). The Court determined that “this finding is amply supported by the record; it is also unchallenged on appeal.”

[1-4] PLAINTIFFS SUBJECTED TO HOSTILE WORK ENVIRONMENT: The Court held that “the plaintiff-employees established that they were subjected to uninvited sexual harassment by a co-worker with the actual knowledge of two supervisory personnel who undertook no reasonably prompt and adequate remedial measures to alleviate the resulting hostile and intimidating work environment in which the employees found themselves.” Id. at 404.

The Court further held that “the recovery of damages by the plaintiff-employees for the mental and emotional suffering they sustained was an appropriate remedy for such unlawful sexual discrimination.” Id.

ISSUE #2: Does a determination of unlawful discrimination support Plaintiffs’ claims of constructive discharge from employment?

[2-1] UNLAWFUL DISCHARGE ALONE IS INSUFFICIENT TO SHOW CONSTRUCTIVE DISCHARGE: The “existence of unlawful discharge alone is insufficient to support a finding of constructive discharge from employment.” Id. at 408 (internal citations omitted).

[2-2] INSUFFICIENT EVIDENCE: The Court found that “the evidence in this case was not sufficient to convince the trial court, as the trier of fact, that either of the employees’ resignations constituted a constructive discharge such as to justify additional damages on account thereof.” Id.

[2-3] APPELLATE COURT AGREED WITH TRIAL COURT: The Court agreed with the trial court and found “that the existence of unlawful discrimination alone is insufficient to support a finding of constructive discharge from employment. Id. at 408 (referencing generally, Henson v. Dundee, 682 F.2d 897, 907-08 (11th Cir. 1982); Nolan v. Cleland, 686 F.2d 806, 812-13 (9th Cir.1982); see also, Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir.1981)).

Accordingly, the Court held that “on the record Before us we cannot conclude this was error” for the trial court to hold that the facts did not permit a finding that either of the plaintiffs were constructively discharged from their jobs. Id.

NOTABLES & IMPLICATIONS:

POLICY

(1) “Sexual harassment as a working condition unfairly handicaps an employee against whom it is directed in his or her work performance and as such is a barrier to sexual equality in the workplace.” Id. at 405.

(2) “[W]e view the essential purpose of [the sexual harassment cause of action] to be preventative in nature.” See id. at 407-08 (referencing Bundy v. Jackson, 641 F.2d 934, 945 (D.C.Cir.1981)).

(3) “[T]he Act does not impose a duty on the employer to maintain a pristine working environment. Rather, it imposes a duty on the employer to take prompt and appropriate action when it knows or should know of co-employees’ conduct in the workplace amounting to sexual harassment.” Id. at 406 (citing Continental Can Co. v. Minnesota, 297 N.W.2d 241, 249 (Minn.1980)).

QUID PRO QUO SEXUAL HARASSMENT

(4) Quid Pro Quo sexual harassment is “a situation where an employer requires sexual consideration from an employee as a quid pro quo for job benefits.” Id. at 405.

TITLE VII

(5) “Interpretations of Title VII, § 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (1982) are not binding on this court, but are instructive and lend support to our decision herein.” Id. at 409, n.2 (referencing Davis v. Department of Labor & Indus., 94 Wash.2d 119, 615 P.2d 1279 (1980)).

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June 29, 2021May 26, 2022

Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735 (Wash. 1977)

This is a case summary of Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735 (Wash. 1977). Subjects include:

» TORT OF “OUTRAGE”

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**Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735 (Wash. 1977)**

case summarY – 4 PRIMARY Facts:

[1] David Contreras and his wife brought an action against Crown Zellerbach Corporation alleging five causes of action based upon allegedly abusive and improper conduct of Crown Zellerbach’s employees and supervisory personnel.

[2] Appellants’ complaint alleges the following facts:

[a] David Contreras and his wife lived in Cathlamet where Mr. Contreras was employed by respondent through the fall and winter of 1973.

[b] He was wrongfully terminated on January 24, 1974.

[c] During the time of his employment he was subjected to continuous humiliation and embarrassment by reason of racial jokes, slurs and comments made in his presence by agents and employees of the defendant corporation on the job site and during working hours.

[d] Respondent’s foreman and managing agents failed to control their employees and to accord appellant the right to work free of racial discrimination, slurs, comments and pressures.

[e] Respondent’s agents and employees, while acting within the scope of their employment, both while appellant was employed and after his discharge, made numerous statements accusing appellant wrongfully of stealing property owned by respondent.

[f] The effect of these untrue statements was to prevent appellant from seeking and holding permanent employment in the Cathlamet area and to hold him and his wife up to public scorn and ridicule.

[g] Some of the statements made by respondent’s agents and employees were made maliciously or with knowledge of their falsity or when they should have known the statements were false.

[h] This conduct resulted in an inability of appellant to obtain employment which in turn made him unable to pay his bills and ruined an otherwise excellent credit rating.

[i] His failure to find full-time employment is a direct and proximate result of respondent’s agents and employees’ slander and racial actions.

[j] Appellant’s [(i.e., the Contreras’)] claim for relief is that respondent’s conduct was intentional or reckless and so extreme in degree as to be beyond all reasonable bounds of decency.

[k] Such conduct in turn caused him severe emotional distress by reason of the acts of intimidation, demotions, humiliations and public exposure to scorn and ridicule when respondent’s agents knew or should have known that appellant, by reason of his nationality and background as a Mexican-American, was particularly susceptible to emotional distress from defendant’s conduct.

[l] He alleges respondent’s conduct thereby amounts to the tort of outrage.

[3] Crown Zellerbach moved to dismiss the first claim for relief, which is premised upon the tort of outrage, for failure to state a claim.

[4] The trial court granted this motion to dismiss and Contreras appeals.

Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 565 P.2d 1173 (Wash. 1977) (internal citations omitted).

ISSUE #1: Did the trial court err in granting Crown Zellerbach’s motion to dismiss Contreras’ first claim for relief premised upon the tort of outrage?

[1-1] TORT OF OUTRAGE — RESTATEMENT (SECOND) OF TORTS § 46: The “Restatement (Second) of Torts § 46 reads as follows:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or

(b) to any other person who is present at the time, if such distress results in bodily harm.”

Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 745, n. 1 (Wash. 1977).

[1-2] LIMITATIONS (INTENTIONAL/RECKLESS): “In Grimsby v. Samson, 85 Wash.2d 52, 59, 530 P.2d 291, 295 (1975), we adopted many of the comments to Restatement (Second) of Torts § 46, and stressed: First, the emotional distress must be inflicted intentionally or recklessly ; mere negligence is not enough.” Id. at 744, n.2, 565 P.2d 1173 (internal quotation marks omitted) (emphasis added).

[1-3] LIMITATIONS (OUTRAGEOUS & EXTREME): “In Grimsby v. Samson, 85 Wash.2d 52, 59, 530 P.2d 291, 295 (1975), we adopted many of the comments to Restatement (Second) of Torts § 46, and stressed: . . . Second, the conduct of the defendant must be outrageous and extreme. . . . it is not enough that a defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” Id. at 745, n.2, 565 P.2d 1173 (internal quotation marks omitted) (emphasis added).

“Liability exists ‘only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ (Italics ours.)” Id.

“Comment d further points out that liability in the tort of outrage ‘does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ ” Id. “In this area plaintiffs must necessarily be hardened to a certain degree of rough language, unkindness and lack of consideration.” Id. “Clearly a case-by-case approach will be necessary to define the precise limits of such conduct.” Id.

“Nevertheless, among the factors a jury or court should consider are the position occupied by the defendant (comment e ), whether plaintiff was peculiarly susceptible to emotional distress and defendant’s knowledge of this fact (comment f ), and whether defendant’s conduct may have been privileged under the circumstances (comment g ).” Id.

[1-4] LIMITATIONS (SEVERE EMOTIONAL DISTRESS): “In Grimsby v. Samson, 85 Wash.2d 52, 59, 530 P.2d 291, 295 (1975), we adopted many of the comments to Restatement (Second) of Torts § 46, and stressed: . . . Third, the conduct must result in severe emotional distress to the plaintiff (comment j ).” Id. at 745, n.2, 565 P.2d 1173 (emphasis added).

“Resulting bodily harm would, of course, be an indication of severe emotional distress, but a showing of bodily harm is not necessary.” Id. (internal quotation marks omitted).

[1-5] THE INITIAL DETERMINATION: “With the[ ] limitations in mind, the trial court first determines whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” Id. at 740, 565 P.2d 1173 (internal citations omitted).

[1-6] RACIALLY DISCRIMINATORY ACTION: According to the Washington State Supreme Court: “In Browning v. Slenderella Systems, 54 Wash.2d 440, 341 P.2d 859 (1959), we held recovery could be premised upon tort liability for emotional distress, unaccompanied by any physical injury where the victim was injured by racially discriminatory action.” Id. at 739, 565 P.2d 1173.

“The court there recognized that the 1948 supplement to Restatement of Torts § 46 changed the language in the initial statement in Restatement, Torts (1934), § 46, to allow recovery from ‘(o)ne who, without a privilege to do so, intentionally causes severe emotional distress to another . . .’ ” Id. (alteration in original). “In its opinion this court quoted subsection (g) of the then section 46:

(g) In short, the rule stated in this section imposes liability for intentionally causing severe emotional distress in those situations in which the actor’s conduct has gone beyond all reasonable bounds of decency. The prohibited conduct is conduct which in the eyes of decent men and women in a civilized community is considered outrageous and intolerable. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim ‘Outrageous!’ “

Id. at 740, 565 P.2d 1173 (citing Browning v. Slenderella Systems at 447-48, 341 P.2d at 864).

[1-7] POSITIONS OF AUTHORITY & OUTRAGEOUS BEHAVIOR: “When one in a position of authority, actual or apparent, over another has allegedly made racial slurs and jokes and comments, this abusive conduct gives added impetus to the claim of outrageous behavior.” Id. at 741, 565 P.2d 1173 (citing Restatement (Second) of Torts § 46 comment e).

“The relationship between the parties is a significant factor in determining whether liability should be imposed.” Id. (internal citations omitted).

[1-8] FORCED TO REMAIN IN PHYSICAL PROXIMITY OF RACIAL SLURS & COMMENTS: “Where a person is not free to leave but must remain in physical proximity to others who continually make racial slurs and comments, it is for the jury to determine both whether this is a factor in making the claim one of extreme outrage and the extent to which the employer was or should have been aware of these conditions, through its supervisory personnel or by other means.” Id. at 741, 565 P.2d 1173.

[1-9] PLAINTIFF’S OWN SUSCEPTIBILITY TO DISCRIMINATORY CONDUCT: “Plaintiff’s own susceptibility to racial slurs and other discriminatory conduct is a question for the trier of fact, and cannot be determined on demurrer.” Id. at 742, 565 P.2d 1173. “It is for the trier of fact to determine, taking into account changing social conditions and plaintiff’s own susceptibility, whether the particular conduct was sufficient to constitute extreme outrage.” Id.

[1-10] MOTION TO DISMISS — CR 12(b)(6): “In determining whether to dismiss appellants’ claim, this court must consider respondent’s challenge within the framework of CR 12(b)(6).” Id. at 742, 565 P.2d 1173.

“A motion to dismiss questions only the legal sufficiency of the allegations in a pleading.” Id. “The court need not find that any support for the alleged facts exists or would be admissible in trial as would be its duty on a motion for summary judgment.” Id.

“The question under CR 12(b)(6) is basically a legal one, and the facts are considered only as a conceptual background for the legal determination.” Id. (citing Brown v. MacPherson’s, Inc., 86 Wash.2d 293, 298, 545 P.2d 13 (1975)).

“The only issue Before the trial judge is whether it can be said there is no state of facts which plaintiff could have proven entitling him to relief under his claim.” Id. (citing Barnum v. State, 72 Wash.2d 928, 435 P.2d 678 (1967); Grimsby v. Samson, supra 85 Wash.2d at 55, 530 P.2d 291).

[1-11] STANDING: In this case, the Court initially determined that the trial court misapplied Grimsby v. Samson, 85 Wash.2d 52, 530 P.2d 291 (1975) to the instant case; essentially, the trial court, in misapplying Grimsby, “believed by our emphasis on the fact that the plaintiff must be an immediate family member of the person who is the object of the defendant’s actions, that it was our intent to limit this tort to third-person situations only.” Id. at 738, 565 P.2d 1173 (emphasis added).

The Court clarified that “[t]here is no reason to limit recovery on the tort of outrage to members of the family of those directly injured while excluding recovery by the person primarily injured and we decline to do so.” Id. at 738 (internal citations omitted).

“A vast majority of cases involving the tort of outrage have been actions brought by the recipient of the conduct.” Id. at 738 (citing Agis v. Howard Johnson Co., Mass., 355 N.E.2d 315 (1976); Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145 (1974); Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216 (1970); see Annot., 64 A.L.R.2d 100 (1959)).

[1-12] LIABILITY BASED ON RACIALLY DISCRIMINATORY ACTION: The Court then determined that “[i]n Browning v. Slenderella Systems, 54 Wash.2d 440, 341 P.2d 859 (1959), we held recovery could be premised upon tort liability for emotional distress, unaccompanied by any physical injury where the victim was injured by racially discriminatory action.” Id. at 739, 565 P.2d 1173.

Accordingly, the Court found that “liability could be premised on outrageous conduct such as that alleged [in the instant case].” Id. at 740 (emphasis added).

[1-13] ADEQUACY OF CLAIM: Next, the Court considered the Respondent’s argument: “[E]ven if it is held the direct recipient of allegedly outrageous conduct may bring suit based upon the tort of outrage, the claim here stated is inadequate.” Id. at 740, 565 P.2d 1173.

The Court concluded that “[w]ith the limitations in mind, the trial court first determines whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” Id. at 740.

The Court then addressed the law regarding positions of authority, relationship between the parties, and issues regarding physical proximity to those making racial slurs and comments.

[1-14] PLAINTIFF’S SUSCEPTIBILITY TO RACIAL SLURS & OTHER DISCRIMINATORY CONDUCT: Lastly, the Court considered the “defendants’ contention that plaintiff, as a truckdriver must have become accustomed to such abusive language.” Id. at 742, 565 P.2d 1173.

The Court concluded that “[i]t is for the trier of fact to determine, taking into account changing social conditions and plaintiff’s own susceptibility, whether the particular conduct was sufficient to constitute extreme outrage.” Id.

[1-15] PLAINTIFF’S EMOTIONAL DISTRESS CLAIM WITHIN PARAMETERS OF TORT OF OUTRAGE: The Court first declared that “[i]n determining whether to dismiss appellants’ claim, this court must consider respondent’s challenge within the framework of CR 12(b)(6).” Id. at 742.

Accordingly, the Court held as follows:

Viewed in this light, appellant’s claim that he was subjected to intentional or reckless conduct on the part of respondent which was beyond all reasonable bounds of decency and caused him severe emotional distress by reason of acts of intimidation, demotions, humiliation in public and exposure to scorn and ridicule, when respondent’s agents knew or should have known that by reason of his Mexican nationality and background he was particularly susceptible to emotional distress as a result of respondent’s conduct, is within the parameters of the tort of outrage as defined by our cases and the Restatement (Second) of Torts § 46(1).

Id. at 742-43, 565 P.2d 1173.

Accordingly, the Court reversed the trial court’s judgment of dismissal. Id. at 743.

NOTABLES & IMPLICATIONS:

1. CONCURRENCE — IN THE RESULT ONLY (JUDGES STAFFORD, HICKS & BRACHTENBACH)

In this case, Judge Stafford wrote a concurrence in result only wherein Judges Hicks and Brachtenbach concurred; Stafford asserted, in part, as follows:

We cannot say, as a matter of fact or a matter of law, that the alleged conduct in this case is the equivalent of the tort of outrage. It is actionable only, if after considering all of the surrounding circumstances, a jury concludes that the conduct is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and should be regarded as atrocious and utterly intolerable in a civilized society. We hold only that the allegations, if proved, provide a jury question. Restatement (Second) of Torts § 46 comment h.

Id. at 744-45, 565 P.2d 1173.

2. HISTORY OF THE TORT OF OUTRAGE

“Liability for outrage is of ancient lineage.” Id. at 738, 565 P.2d 1173. “The law in the classical age of the Roman Empire allowed recovery for outrage or insult as the delict of ‘iniuria.’ ” Id. “It required an intent to insult and that anger be shown as soon as the facts were known. Intent to insult, however, could be presumed from the facts, which spoke for themselves.” Id. at 738-39.

“Defamation under Roman law was also a case of ‘iniuria,’ where the basis of liability was not loss of reputation but outrage to feelings.” Id. at 739. “Publication to a third party was thus arguably unnecessary.” Id. (citing W. Buckland and A. McNair, Roman Law and Common Law 295-300 (1936)).

“Acceptance of the tort of outrage has undergone a remarkable evolutionary process in the United States in a relatively short time.” Id. at 739, 565 P.2d 1173. “Section 46 of the Restatement of Torts in its original form stated flatly there was no liability for the intentional infliction of emotional distress, or for bodily harm resulting from it, except in cases of assault and of the special liability of carriers covered in section 48.” Id. “This position was reversed in the 1948 supplement and the comments were completely rewritten.” Id. (citing Restatement (Second) of Torts § 46 at 21 (Tent. Draft No. 1, 1957)).

“The Restatement and courts supporting it have since drastically changed their position, from denial of liability for intentionally inflicting emotional distress to the allowance of liability against one who intentionally caused emotional distress without privilege to do so, and later to the present rule which requires that the conduct be extreme and outrageous Before liability will attach.” Id. (citing Pakos v. Clark, 253 Or. 113, 453 P.2d 682 (1969)).

3. RACIAL SLURS AND OTHER DISCRIMINATORY CONDUCT

PHYSICAL PROXIMITY: “Where a person is not free to leave but must remain in physical proximity to others who continually make racial slurs and comments, it is for the jury to determine both whether this is a factor in making the claim one of extreme outrage and the extent to which the employer was or should have been aware of these conditions, through its supervisory personnel or by other means.” Id. at 741, 565 P.2d 1173.

QUESTION FOR TRIER OF FACT: “As we as a nation of immigrants become more aware of the need for pride in our diverse backgrounds, racial epithets which were once part of common usage may not now be looked upon as ‘mere insulting language.’ ” Id. at 741, 565 P.2d 1173. “Changing sensitivity in society alters the acceptability of former terms.” Id. “It is noted in Alcorn v. Anbro Engineering, Inc., [2 Cal.3d 493, 498 n.4, 86 Cal.Rptr. 88, 91, 468 P.2d 216 (1970)] . . . :

[P]laintiff’s own susceptibility to racial slurs and other discriminatory conduct is a question for the trier of fact, and cannot be determined on demurrer.

Id. at 742, 565 P.2d 1173.

case summarY – 19 PRIMARY Facts:

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

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

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

NOTABLES & IMPLICATIONS:

PLEADINGS

PROMISSORY ESTOPPEL

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case summary – 7 Facts:

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

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

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

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

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CASE SUMMARY – 11 Facts:

ISSUE #1: Under the WLAD, may a plaintiff have standing to sue their employer for disability discrimination when based on perceived disability?

ISSUE #2: Is WAC 162-22-040(1)(b)(iii) valid?

NOTABLES & IMPLICATIONS:

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CASE SUMMARY – 20 Facts:

procedural HISTORY – 8 facts:

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.

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

NOTABLES & IMPLICATIONS:

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CASE SUMMARY – 16 Facts:

ISSUE #1: Did the trial court err in concluding that the employer was liable for sexual discrimination in violation of RCW 49.60?

ISSUE #2: Does a determination of unlawful discrimination support Plaintiffs’ claims of constructive discharge from employment?

NOTABLES & IMPLICATIONS:

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case summarY – 4 PRIMARY Facts:

ISSUE #1: Did the trial court err in granting Crown Zellerbach’s motion to dismiss Contreras’ first claim for relief premised upon the tort of outrage?

NOTABLES & IMPLICATIONS:

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

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