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February 9, 2023

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

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

» FRAUD

» MOTIONS FOR RECONSIDERATION

» PROMISSORY ESTOPPEL

» SELF-EVALUATIONS

» THE MCDONNELL DOUGLAS FRAMEWORK — PRETEXT

» WRONGFUL TERMINATION

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

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

(2) discrimination.

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

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.

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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**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[ ]”?