Category: Plaintiff Victory

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Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607 (Wash.App. Div. 1 1984)

This is a case summary of Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607, 676 P.2d 545 (Wash.App. Div. 1 1984). “Simon Lewis appeal[ed] from the dismissal of his employment discrimination action against Lockheed Shipbuilding, alleging that the trial court applied an erroneous statute of limitations. [The Court of Appeals] … agree[d] and reverse[d] the order of dismissal.” Id. at 608. The subjects addressed herein include the following:

»  STATUTE OF LIMITATIONS

»  WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

(NOTE: this article does not address the additional issue concerning the continuing-violations doctrine.)

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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Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607, 676 P.2d 545 (Wash. App. 1984)
Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607, 676 P.2d 545 (Wash.App. Div. 1 1984)
case summarY – 7 PRIMARY Facts:

[1] Lewis, a black male, was hired on October 12, 1977, by Lockheed Shipbuilding and Construction Company to work on a cable crew.

[2] It appears that Lewis suffered from hypertension, and that his doctor recommended that he be placed on light duty. [(Footnote omitted)].

[3] The collective bargaining agreement provided that an employee would be regarded as having voluntarily terminated his employment following three unexplained absences.

[4] Because Lewis failed to report to work for three consecutive workdays or more without explanation, Lockheed advised Lewis’ collective bargaining representative on May 4, 1978 that Lewis would not be rehired.

[5] It also appears that Lewis made several unsuccessful attempts to regain employment at Lockheed, but was turned down because he was placed in a “no re-hire” category.

[6] On March 6, 1981, Lewis sued Lockheed, alleging that his dismissal was the result of illegal discrimination under Washington law based on his disability and/or race.

[7] The trial court, however, granted Lockheed’s motion to dismiss on the ground that Lewis’ claim was barred by the 2-year statute of limitations, RCW 4.16.130.

Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607, 608-09, 676 P.2d 545 (Wash.App. Div. 1 1984) (footnote omitted) (paragraph formatting and hyperlink to external website added).

ISSUE #1:  Under the Washington Law Against Discrimination (RCW 49.60), do courts apply a 3-year statute of limitations to actions pursuant to RCW 4.16.080(2)?

Rule(s)
-RULE(S)-

[1-1] THE WASHINGTON LAW AGAINST DISCRIMINATION (WLAD) DOES NOT HAVE ITS OWN STATUTE OF LIMITATIONS

“RCW 49.60, the Washington Law Against Discrimination, does not have its own statute of limitations.” Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607, 609, 676 P.2d 545 (Wash.App. Div. 1 1984) (hyperlink to external website added).

[1-2] TWO-YEAR STATUTE OF LIMITATIONS (“CATCH-ALL STATUTE”) — RCW 4.16.130

“RCW 4.16.130 provides:

Actions for relief not otherwise provided for. An action for relief not herein[before] … provided for, shall be commenced within two years after the cause of action shall have accrued.

Lewis, 36 Wn.App. at 609, 676 P.2d 545 (hyperlink to external website added). This is also known as the “catch-all” statute. See id at 611.

[1-3] THREE-YEAR STATUTE OF LIMITATIONS — RCW 4.16.080(2)

“RCW 4.16.080 provides in relevant part:

Actions limited to three years. Within three years:

* * *

(2) An action for taking, detaining, or injuring personal property, including an action for the specific recovery thereof, or for any other injury to the person or rights of another not hereinafter enumerated;

Lewis, 36 Wn.App. at 609, 676 P.2d 545 (hyperlink to external website added).

[1-3a]  Three-Year Statute of Limitations Applies to Invasions to Plaintiff’s Person or Property Rights

“RCW 4.16.080(2) applies only to certain direct invasions of a plaintiff’s person or property rights.” Lewis, 36 Wn.App. at 611 (citing Noble v. Martin, 191 Wash. 39, 46, 70 P.2d 1064 (1937); Peterick v. State, 22 Wash.App. 163, 168-69, 589 P.2d 250 (1977)) (hyperlink to external website added). Thus, “where the defendant directly invades a legally protected interest of the plaintiff, the 3-year statute applies.” Id. at 612.

[1-3b]  The WLAD Liberal-Construction Mandate Supports 3-Year Statute of Limitations

“[S]upport for applying the 3-year statute is found in the Legislature’s directive that RCW 49.60 be liberally construed.” Lewis, 36 Wn.App. at 613 (citing Franklin County Sheriff’s Office v. Sellers, 97 Wash.2d 317, 334, 646 P.2d 113 (1982), cert. denied, — U.S. —-, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983); Fahn v. Cowlitz County, 93 Wash.2d 368, 374, 610 P.2d 857 (1980)) (hyperlink to external website added).

[1-4] THE CASELAW (4 CASES)

In this case, the Court evaluated the following five cases to resolve the issue concerning statute of limitations:

[1-4a]  Canon v. Miller

» “In Cannon [v. Miller, 22 Wash.2d 227, 155 P.2d 500, 157 A.L.R. 530 (1045)], the plaintiffs sought to recover unpaid overtime wages under the Fair Labor Standards Act (FLSA), 29 U.S.C.A. § 201, et seq. (West 1978).” Lewis, 36 Wn.App. at 609 (hyperlink to external website added).

» “Because the FLSA does not have its own statute of limitations, the statute of limitations of the state where the action was brought was applicable.” Id.

» “The plaintiffs contended that the 3-year contract statute of limitations applied, and the defendants relied on the 2-year catch-all statute.” Id. at 609-10.

» “The court recognized that although the FLSA in effect created an implied obligation in the employment contract to pay overtime wages, this liability was not truly contractual because it would not have existed but for the statute.” Id. at 610 (citing Cannon, 22 Wash.2d at 241, 155 P.2d 500).

» “Accordingly, the court held that FLSA actions were not governed by the contract statute of limitations, and instead applied the catch-all statute.” Id.

[1-4b]  Luellen v. Aberdeen

» “In Luellen v. Aberdeen, 20 Wash.2d 594, 148 P.2d 849 (1944), the plaintiff sought reinstatement to the city police force.” Lewis, 36 Wn.App. at 612.

» “The court held that, because the plaintiff had acquired a property right to his civil service pension, the city invaded that right by firing him.” Id.

» “The court thus applied the 3-year statute, stating that it
was intended to cover injury to that kind of property that is intangible in its nature, especially when the injury consists of some direct, affirmative act which prevents another from securing, having, or enjoying some valuable right or privilege.”
Id. (citing Luellen, 20 Wash.2d at 604, 148 P.2d 849).

» Accordingly, Division One concluded: “[W]here the defendant directly invades a legally protected interest of the plaintiff, the 3-year statute applies.” Id.

[1-4C]  State ex rel. Bond v. State

» “In State ex rel. Bond v. State, 59 Wash.2d 493, 368 P.2d 676 (1962), the plaintiff sought reinstatement to public employment pursuant to a statute granting veterans an employment preference.” Lewis, 36 Wn.App. at 610

» “He alleged that his claim fell within the 3-year statute as being an action upon ‘any other injury to the person or rights of another'”. Id. (citing Bond, 59 Wash.2d at 495, 368 P.2d 676. See RCW 4.16.080(2)) (internal quotation marks omitted) (hyperlink to external website added).

» “The defendant contended that the catch-all statute applied, because the plaintiff’s claim was founded upon a liability created by statute. The court flatly rejected this argument.” Id.

» “In the court’s view, cases such as Cannon held only that actions founded upon purely statutory liabilities do not fall within the 3-year contract statute of limitations–they did not hold that such actions necessarily fall within the catch-all statute.” Id. at 610-11 (citing Bond, 59 Wash.2d at 497-98, 368 P.2d 676) (footnotes omitted).

» The Court declared:

We reiterate that there is no such category as “an action on a liability created by a statute” in our limitation statutes. Such an action does not fall within the “catch-all” statute unless there is no other statute of limitations applicable thereto, i.e., it is “an action for relief not hereinbefore provided for.”

Id. at 611 (citing Bond, 59 Wash.2d at 498, 368 P.2d 676) (footnote omitted).

» “The court went on to hold that an action under the veteran’s preference statute fell within the predecessor of RCW 4.16.080(2) as being an action for any other injury to the person or rights of another not hereinafter enumerated.” Lewis, 36 Wn.App. at 611 (citing Bond, 59 Wash.2d at 500, 368 P.2d 676) (hyperlink to external website added).

[1-4D]  Washington v. Northland Marine Co.

» “In Washington v. Northland Marine Co., 681 F.2d 582 (9th Cir.1982), the plaintiffs sued their union under the Labor Management Relations Act (LMRA), alleging that the union had not fulfilled its duty of representation.” Lewis, 36 Wn.App. at 612.

» “Because the LMRA has no statute of limitations, the court was forced to look to the appropriate Washington statute.” Id.

» “Following Luellen, the court rejected the catch-all statute and applied RCW 4.16.080(2), despite the fact that the plaintiffs’ right to union representation was clearly not a property right in the usual sense.” Lewis, 36 Wn.App. at 612 (hyperlink to external website added).

Analysis
-ANALYSIS-

[1-5]  LOCKHEED CONTENDS THAT THE 2-YEAR “CATCH-ALL” STATUTE OF LIMITATIONS APPLIES TO WLAD ACTIONS

In this case, Lockheed contends that the 2-year “catch-all” statute of limitations applies to WLAD actions pursuant to RCW 4.16.130;  whereas Lewis argues that a 3-year statute of limitations applies under RCW 4.16.080(2). See Lewis, 36 Wn.App. at 609 (hyperlinks to external website added).

[1-5A]  LOCKHEED’S ARGUMENT #1 — THE 2-YEAR STATUTE OF LIMITATIONS APPLIES to liabilities created by statute:

“Lockheed contends that the 2-year ‘catch-all’ statute of limitations, RCW 4.16.130, applies to actions brought under … [the Washington Law Against Discrimination].” Lewis, 36 Wn.App. at 609 (hyperlink to external website added). Accordingly, it asserts that “the 2-year catch-all statute of limitations applies to all causes of action that are founded upon liabilities created by statute.” Id. “Because Lewis would not have a claim but for the Washington Law Against Discrimination, his claim, Lockheed contends, falls within RCW 4.16.130.” Lewis, 36 Wn.App. at 609 (hyperlink to external website added). “Lockheed relies on Cannon v. Miller, 22 Wash.2d 227, 155 P.2d 500, 157 A.L.R. 530 (1945) to support this view.” Lewis, 36 Wn.App. at 609.

COURT’S ANALYSIS — LOCKHEED’S ARGUMENT #1

» There is no such category as an action on a liability created by a statute in our limitations statutes.

“Lockheed … relies on Cannon [v. Miller] for the proposition that all actions founded upon liabilities created by statute necessarily fall within the 2-year catch-all statute. We do not agree.” Lewis, 36 Wn.App. at 610. “We reiterate that there is no such category as ‘an action on a liability created by a statute’ in our limitation statutes. Such an action does not fall within the ‘catch-all’ statute unless there is no other statute of limitations applicable thereto, i.e., it is ‘an action for relief not hereinbefore provided for.'” Id. at 611. (citing State ex rel. Bond, 59 Wash.2d at 498, 368 P.2d 676).

[1-5B]  LOCKHEED’S ARGUMENT #2 — THE WLAD DOES NOT PROTECT PROPERTY RIGHTS:

Moreover, “Lockheed, … argues that RCW 49.60 does not purport to confer or protect any property rights.” Lewis, 36 Wn.App. at 612-13 (hyperlink to external website added).

COURT’S ANALYSIS — LOCKHEED’S ARGUMENT #2

» This argument is disingenuous: The 3-year statute covers all direct invasions of property that are intangible in nature.

“[T]he issue here is if actions under RCW 49.60 fall within RCW 4.16.080(2). Only if they do not would the catch-all statute apply.” Lewis, 36 Wn.App. at 611 (hyperlinks to external website added). “RCW 4.16.080(2) applies only to certain direct invasions of a plaintiff’s person or property rights.” Lewis, 36 Wn.App. at 611 (internal citations omitted) (hyperlink to external website added). Accordingly, the Court found that Lockheed’s “argument is disingenuous. As [the case of] Luellen [v. Aberdeen] demonstrates, the 3-year statute covers all direct invasions of ‘property that is intangible in nature.'” Lewis, 36 Wn.App. at 613 (emphasis added).

EXAMPLE #1 (Washington v. Northland Marine): The Court offered Washington v. Northland Marine Co. for example: “In Washington v. Northland Marine Co., 681 F.2d 582 (9th Cir.1982), the plaintiffs sued their union under the Labor Management Relations Act (LMRA), alleging that the union had not fulfilled its duty of representation.” Lewis, 36 Wn.App. at 613. The Court determined:

Because the LMRA has no statute of limitations the court was forced to look to the appropriate Washington statute. Following Luellen, the court rejected the catch-all statute and applied RCW 4.16.080(2), despite the fact that the plaintiffs’ right to union representation was clearly not a property right in the usual sense.

Lewis, 36 Wn.App. at 613 (both hyperlink to external website and emphasis added).

EXAMPLE #2 (Luellen v. Aberdeen): The Court also determined that, in Luellen v. Aberdeen:

[T]he plaintiff sought reinstatement to the city police force. The court held that, because the plaintiff had acquired a property right to his civil service pension, the city invaded that right by firing him. The court thus applied the 3-year statute, stating that it was intended to cover injury to that kind of property that is intangible in its nature, especially when the injury consists of some direct, affirmative act which prevents another from securing, having, or enjoying some valuable right or privilege.

Lewis, 36 Wn.App. at 613 (citing Luellen, 20 Wn.2d at 604, 148 P.2d 849) (emphasis added).

[1-6]  FURTHER SUPPORT FOR APPLYING THE 3-YEAR STATUTE OF LIMITATIONS IS FOUND IN WLAD:

Lastly, the Court determined: “Further support for applying the 3-year statute is found in the Legislature’s directive that RCW 49.60 be liberally construed.” Id. (citing Franklin County Sheriff’s Office v. Sellers, 97 Wash.2d 317, 334, 646 P.2d 113 (1982), cert. denied, — U.S. —-, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983); Fahn v. Cowlitz County, 93 Wash.2d 368, 374, 610 P.2d 857 (1980)) (hyperlink to external website added).

Conclusion
-CONCLUSION-

[1-7]  COURTS APPLY A 3-YEAR STATUTE OF LIMITATIONS TO WLAD ACTIONS PURSUANT TO RCW 4.16.080(2) — REVERSED & REMANDED:

Here, the Court found that under the Washington Law Against Discrimination (RCW 49.60), courts apply a 3-year statute of limitations to actions pursuant to RCW 4.16.080(2). See Lewis, 36 Wn.App. at 611-613 (hyperlinks to external website added). Moreover, the Court determined that, “even if the arguments favoring application of the 2 and 3-year statutes were otherwise fairly equal, applying the 3-year statute better supports the liberal policies underlying the Law Against Discrimination.” Id. at 613. Accordingly, Division One held: “The order dismissing the action is reversed and the case is remanded for trial.” Id. at 614.

NOTABLES & IMPLICATIONS:

FAILURE OF PUBLIC OFFICIALS TO PERFORM THEIR OFFICIAL DUTIES — northern grain & warehouse co. V. holst

The Court in this case also evaluated Northern Grain & Warehouse Co. v. Holst, to conclude:

Washington courts have consistently followed Northern Grain in holding that the 2-year catch-all statute applies to causes of action arising out of the failure of public officials to perform their official duties.

Lewis, 36 Wn.App. at 612 (citing Constable v. Duke, 144 Wash. 263, 266-67, 257 P. 637 (1927); Gates v. Rosen, 29 Wash.App. 936, 941, 631 P.2d 993 (1981), aff’d sub nom. Hall v. Niemer, 97 Wash.2d 574, 649 P.2d 98 (1982); Peterick v. State, supra, 22 Wash.App. at 169, 589 P.2d 250)).

The Court evaluated Northern Grain as follows:

• “In Northern Grain & Warehouse Co. v. Holst, [ ] the plaintiff was unable to retrieve grain stored at a warehouse upon presentation of a warehouse receipt.” Lewis, 36 Wn.App. at 611-12.

• “He then sued members of the public service commission for negligently issuing a license to the owner of the warehouse without obtaining a bond as required by state law.” Id. at 612.

• “The court reasoned that the 3-year statute of limitations for injuries to the ‘rights of another’ must be construed narrowly or it would incorporate all causes of action, completely nullifying the catch-all statute.” Id.

• “Accordingly, the court held that the plaintiff’s cause of action was not based upon an injury sufficiently direct to fall within the 3-year statute.” Id.

• “Rather, it was ‘indirectly based upon the failure of public officials to perform duties imposed by law.'” Id. (citing Northern Grain, 95 Wash. at 315, 163 P. 775).

• “Washington courts have consistently followed Northern Grain in holding that the 2-year catch-all statute applies to causes of action arising out of the failure of public officials to perform their official duties.” Lewis, 36 Wn.App. at 612 (citing Constable v. Duke, 144 Wash. 263, 266-67, 257 P. 637 (1927); Gates v. Rosen, 29 Wash.App. 936, 941, 631 P.2d 993 (1981), aff’d sub nom. Hall v. Niemer, 97 Wash.2d 574, 649 P.2d 98 (1982); Peterick v. State, supra, 22 Wash.App. at 169, 589 P.2d 250)).

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Marquis v. City of Spokane (Majority Opinion), 130 Wn.2d 97 (Wash. 1996)

This is a case summary of the majority opinion for Marquis v. City of Spokane, 130 Wn.2d 97, 922 P.2d 43 (Wash. 1996); it does not include the dissent. Subjects include, but are not limited to the following:

»  SEXUAL DISCRIMINATION UNDER WLAD

»  INDEPENDENT CONTRACTORS

»  MAKING/PERFORMANCE OF CONTRACT FOR EMPLOYMENT

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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Marquis v. City of Spokane (Majority Opinion), 130 Wn.2d 97 (Wash. 1996)
Marquis v. City of Spokane (Majority Opinion), 130 Wn.2d 97, 922 P.2d 43 (Wash. 1996)
case summarY – 36 Facts:

[1] In December 1986 Plaintiff Patti Marquis entered into a three-year contract with the City of Spokane to serve as the golf professional at Downriver Golf Course, one of three golf courses owned by the City.

[2]  The City had solicited proposals from qualified golf professionals for the position and Ms. Marquis was personally recruited for the job by the City’s Director of Parks and Recreation.

[3]  A final contract was not published as a “take it or leave it” offer by the City; instead, golf professionals were invited to submit proposals based on a sample contract provided by the City.

[4]  Selection of the finalists was made by reviewing the proposed contracts.

[5]  Ms. Marquis was selected as the City golf committee’s first choice to negotiate a final contract.

[6]  Under the terms of the contract negotiated between Ms. Marquis and the City, Ms. Marquis had responsibility for operating the golf course, practice range, pro shop, cafe, food services, and clubhouse.

[7]  Although the terms of the contract provided only for extensions of two additional one-year terms, Ms. Marquis was told during the original contract negotiations that she could expect a long career at Downriver Golf Course and that her contract would be continually renewed so long as she performed her job.

[8]  The previous golf pro at Downriver had worked as the manager at that golf course for 31 years.

[9]  While she was serving as golf professional at Downriver, Ms. Marquis learned that the compensation she was receiving under her contract was different from the compensation of the golf professionals–both male–who operated the other city-owned golf courses.

[10]  According to a financial planner who submitted an affidavit in support of Ms. Marquis’ position, a review of the contracts of the City’s three golf professionals and the various revenues generated by each golf course from 1987 to 1989 showed that Ms. Marquis was paid less than the male golf professionals each year–averaging about $12,000 less than one of the men and approximately $37,000 less than the other.

[11]  When she expressed concern regarding the discrepancies in income, the City’s golf manager asked why she was worried about it as she was married to a doctor.

[12]  A member of the City’s golf committee responded, “If you can’t take the heat, get out of the kitchen.”

[13]  Ms. Marquis also alleges she was subjected to discriminatory treatment during the course of her tenure at Downriver Golf Course.

[13a]  For example, she claims she was criticized for hiring a woman, rather than a man, as her assistant. She alleges she received weekly telephone calls from the City’s golf manager, criticizing her for minor violations of her contract.

[13b]  For example, she was criticized or reprimanded for allowing a dog to be in the parking lot; for having family members help out, without pay, when a regular employee did not show up for work; for not having two employees behind the counter in the pro shop at all times; and for spending too much time in her office.

[14]  Ms. Marquis alleges that substantially similar conduct by the male golf pros was not criticized and the male golf pros were not similarly reprimanded by the City.

[15]  She also alleges she was reprimanded for incidents which were demonstrated not to have occurred.

[15a]  For example, the City sent Ms. Marquis a letter of reprimand accusing her and her assistant golf pro of giving a golfer permission to take liquor onto the golf course.

[16]  The letter was made a part of her file, even though Ms. Marquis, the assistant pro, and the golfer denied that this incident had ever occurred.

[17]  Just prior to December 31, 1989, when Ms. Marquis’ contract was to expire, negotiations for a new contract began.

[18]  Revenues at Downriver had increased by 34 percent during the contract period, and Ms. Marquis appeared to have the support of the golfers who used the course.

[19]  She says she therefore expected to be offered a longer contract during the negotiations.

[20]  However, based on the reprimands in her file, the City refused to unconditionally renew her contract and, instead, offered a one-year probationary contract.

[21]  Ms. Marquis states she was not able to accept the reasons for the new contract’s restrictions and that she could not continue working under the same conditions.

[22]  She therefore terminated the negotiations and her contract expired on December 31, 1989.

[23]  She then filed this action alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and in violation of this state’s law against discrimination, RCW 49.60. (Footnote omitted).

[24]  The City filed two motions for summary judgment.

[25]  In the first, the City argued that the Title VII claim should be dismissed on the ground that Ms. Marquis, as an independent contractor, lacked standing to bring an action under the federal law and, further, that she failed to exhaust administrative remedies that are a prerequisite to bringing a Title VII action.

[26]  The City also argued that Ms. Marquis had failed to present evidence supporting each element of her discrimination claims.

[27]  The trial court dismissed the Title VII claims but found Ms. Marquis had established a genuine issue of fact with respect to the existence of sex discrimination under state law and denied the motion with respect to the state claim.

[28]  The City’s second motion for summary judgment requested dismissal of discrimination claims brought pursuant to RCW 49.60.030(1).

[29]  The City argued that Washington’s law against discrimination does not prohibit discrimination against independent contractors.

[30]  The trial court agreed and dismissed the discrimination claims.

[31]  The Court of Appeals reversed. Marquis v. City of Spokane, 76 Wash.App. 853, 888 P.2d 753 (1995).

[32]  With respect to Ms. Marquis’ appeal, the Court of Appeals held that the prohibition against discrimination in the workplace contained in RCW 49.60.030 was not limited to the employer/employee relationship and could reasonably be interpreted to incorporate other rights recognized by federal law, including contract rights protected by former 42 U.S.C. § 1981 (prohibiting discrimination in the making of contracts on the basis of race). (Footnote omitted).

[33]  Thus, the court held that RCW 49.60.030 creates a cause of action for independent contractors based on sex discrimination in the making of contracts for personal services.

[34]  The court also held that Ms. Marquis had presented evidence constituting a prima facie case.

[35]  Because the City countered with evidence that the contract differences were based on legitimate nondiscriminatory reasons, a genuine issue of fact was created, making summary judgment improper.

[36]  The City petitioned for review and this court agreed to review the issues presented by both parties.

Marquis v. City of Spokane, 130 Wn.2d 97, 922 P.2d 43 (Wash. 1996).

ISSUE #1:  “Does an independent contractor who claims she was treated unfairly in the negotiation and performance of a contract for personal services have a cause of action for sex discrimination under RCW 49.60.030?” Id. at 104.

Rule(s) of the issue
-RULE(S)-

[1-1]  SUMMARY JUDGMENT: DE NOVO REVIEW: For cases involving appeal from an order granting summary judgment, “[r]eview is … de novo and the court engages in the same inquiry as the trial court.” Marquis, 130 Wn.2d at 105 (citing Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982); Hiatt v. Walker Chevrolet Co., 120 Wash.2d 57, 65, 837 P.2d 618 (1992)). “That inquiry is whether there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law.” Id. (citing Fahn v. Cowlitz County, 93 Wash.2d 368, 373, 610 P.2d 857 (1980)).

[1-2] SUMMARY JUDGMENT: IMPROPER WHEN THERE ARE ISSUES OF MATERIAL FACT: “We consider the evidence and the reasonable inferences therefrom in a light most favorable to the nonmoving party.” Id. at 105 (citing Schaaf v. Highfield, 127 Wash.2d 17, 21, 896 P.2d 665 (1995)). “If we determine there is a dispute as to any material fact, then summary judgment is improper.” Id. (citing Hiatt, 120 Wash.2d at 65, 837 P.2d 618). “However, where reasonable minds could reach but one conclusion from the admissible facts in evidence, summary judgment should be granted.” Id. (citing CR 56(c); LaMon v. Butler, 112 Wash.2d 193, 199, 770 P.2d 1027, cert. denied, 493 U.S. 814, 110 S.Ct. 61, 107 L.Ed.2d 29 (1989)).

[1-3]  SUMMARY JUDGMENT: NEED MORE THAN OPINIONS OR CONCLUSORY STATEMENTS: “In order for a plaintiff alleging discrimination in the workplace to overcome a motion for summary judgment, the worker must do more than express an opinion or make conclusory statements.” Id. (citing Grimwood v. University of Puget Sound, Inc., 110 Wash.2d 355, 359-60, 753 P.2d 517 (1988), abrogated on other grounds by Mikkelson v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 404 P.3d 464 (2017)). “The worker must establish specific and material facts to support each element of his or her prima facie case.” Id. (citing Hiatt, 120 Wash.2d at 66-67, 837 P.2d 618). 

[1-4]  THE WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): HISTORY:

1949: “Washington’s law against discrimination was enacted in 1949 as an employment discrimination law.” Id. at 105 (citing Laws of 1949, ch. 183). “The law prohibited discrimination in employment on the basis of race, creed, color or national origin.” Id.

1957: “The scope of protection under the law was expanded in 1957, when the law was amended to prohibit discrimination not only in employment but also in places of public resort, accommodation or amusement, and in publicly assisted housing because of race, creed, color or national origin.” Id. at 105-06 (citing Laws of 1957, ch. 37). “The 1957 amendment provided that the right to be free from discrimination included but was not limited to the rights listed in the chapter.” Id. at 106 (citing Laws of 1957, ch. 37, § 3).

1973: “In 1973 the law was amended to specifically prohibit discrimination in credit and insurance transactions. That same year sex, marital status, age, and disability were added as unlawful bases for discrimination.” Id. (citing Laws of 1973, ch. 141; Laws of 1973, 1st Ex.Sess., ch. 214).

Currently: “Although the law has been amended since that time, it remains substantially the same as it was following the 1973 amendments.” Id.

“The law against discrimination, RCW 49.60, includes general provisions recognizing that the right to be free from discrimination because of race, creed, color, national origin, sex, marital status, age or disability is a civil right.” Marquis, 130 Wn.2d at 106 (citing RCW 49.60.010,  .030(1)) (footnote omitted) (hyperlink added).

“RCW 49.60.030(1) does not include age or marital status within the enumeration of protected classes. Discrimination in employment because of age or marital status is prohibited under RCW 49.60.180 and RCW 49.44.090(age).” Marquis, 130 Wn.2d at 128 n.3 (hyperlinks added).

Human Rights Commission: “The law also establishes the Human Rights Commission and gives that agency ‘powers with respect to elimination and prevention of discrimination’ in employment and in other specified areas, RCW 49.60.010, as well as the power to investigate and rule on complaints alleging unfair practices as defined in the statute.” Marquis, 130 Wn.2d at 106 (citing RCW 49.60.120(4)) (footnote omitted) (hyperlink added).

[1-5]  WLAD: RCW 49.60.030: “The provision of the statute which is involved in this appeal is the following:

(1) The right to be free from discrimination because of race, creed, color, national origin, sex, or the presence of any sensory, mental, or physical disability is recognized as and declared to be a civil right. This right shall include, but not be limited to:

(a) The right to obtain and hold employment without discrimination;

….

(2) Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964….

Marquis, 130 Wn.2d at 106-07 (citing RCW 49.60.030(1) (part), (2)) (footnote omitted). 

[1-6]  RULES OF STATUTORY CONSTRUCTION: STATUTE CLEAR ON ITS FACE NOT SUBJECT TO JUDICIAL INTERPRETATION: “Rules of statutory construction provide that a statute which is clear on its face is not subject to judicial interpretation.” Id. at 107 (citing In re Marriage of Kovacs, 121 Wash.2d 795, 804, 854 P.2d 629 (1993)).

[1-7]  RULES OF STATUTORY CONSTRUCTION: RCW 49.60.030(1) IS UNAMBIGUOUS AND UNCLEAR: UNCLEAR STATUTES ARE INTERPRETED IN MANNER THAT BEST FULFILLS LEGISLATIVE PURPOSE AND INTENT: The Washington State Supreme Court agreed with the Court of Appeals “that RCW 49.60.030(1) is unambiguous to the extent that it sets forth a nonexclusive list of rights.” Marquis, 130 Wn.2d at 107 (hyperlink added). “However, the statute is unclear to the extent that it makes a broad statement of rights, without defining the scope of those rights. If a statute is unclear, and thus subject to judicial interpretation, it will be interpreted in the manner that best fulfills the legislative purpose and intent.” Id. at 107-08 (citing In re Marriage of Kovacs, 121 Wash.2d at 804, 854 P.2d 629).

[1-8]  WLAD LEGISLATIVE PURPOSE: “The legislative purpose of Washington’s law against discrimination is set forth in the statute itself. RCW 49.60.010 provides:

This chapter shall be known as the ‘law against discrimination.’ It is an exercise of the police power of the state for the protection of the public welfare, health, and peace of the people of this state, and in fulfillment of the provisions of the Constitution of this state concerning civil rights.

The legislature hereby finds and declares that practices of discrimination against any of its inhabitants because of race, creed, color, national origin, families with children, sex, marital status, age, or the presence of any sensory, mental, or physical disability … are a matter of state concern, that such discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state.

A state agency is herein created with powers with respect to elimination and prevention of discrimination in employment, in credit and insurance transactions, in places of public resort, accommodation, or amusement, and in real property transactions because of race, creed, color, national origin, families with children, sex, marital status, age, or the presence of any sensory, mental, or physical disability …; and the commission established hereunder is hereby given general jurisdiction and power for such purposes.

RCW 49.60.010 (paragraph formatting and hyperlinks added).

[1-9]  WLAD CONTAINS STATUTORY MANDATE OF LIBERAL CONSTRUCTION: REQUIRES COURTS VIEW WITH CAUTION ANY CONSTRUCTION NARROWING COVERAGE OF THE LAW: WLAD “also requires liberal construction in order to accomplish the purposes of the law and states that nothing contained in the law shall ‘be construed to deny the right to any person to institute any action or pursue any civil or criminal remedy based upon an alleged violation of his or her civil rights.'” Id. at 108 (citing RCW 49.60.020).

“Further, we have held that a statutory mandate of liberal construction requires that we view with caution any construction that would narrow the coverage of the law.” Id. (citing Shoreline Community College Dist. No. 7 v. Employment Sec. Dep’t, 120 Wash.2d 394, 406, 842 P.2d 938 (1992)).

[1-10]  WLAD PURPOSE IS TO DETER AND READICATE DISCRIMINATION IN WASHINGTON: PLAINTIFF BRINGING DISCRIMINATION CASE ASSUMES ROLE OF PRIVATE ATTORNEY GENERAL: “This court has held that the purpose of the law is to deter and to eradicate discrimination in Washington … and has stated that a plaintiff bringing a discrimination case in Washington assumes the role of a private attorney general, vindicating a policy of the highest priority.” Id. at 109 (citing Allison v. Housing Auth., 118 Wash.2d 79, 86, 821 P.2d 34 (1991)).

[1-11]  WLAD POLICY AGAINST SEX DISCRIMINATION: EVIDENCED BY ENACTMENT OF EQUAL RIGHTS AMENDMENT: “This state’s strong policy against sex discrimination is further evidenced by its enactment of the Equal Rights Amendment to the state constitution.” Id. at 109 (citing Const. art. XXXI, §§ 1-2 (amend. 61) (“equality of right shall not be denied or abridged on account of sex and the legislature has the power to enforce the provisions of the amendment by appropriate legislation”)) (hyperlink added).

[1-12]  TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 (TITLE VII): “In construing the law against discrimination, we have sometimes looked for guidance to cases interpreting equivalent federal law.” Id. (citing Xieng v. Peoples Nat’l Bank, 120 Wash.2d 512, 518, 844 P.2d 389 (1993)).

INDEPENDENT CONTRACTORS: TITLE VII DOES NOT APPLY: “Federal cases have interpreted Title VII of the federal act to apply in the employment setting, but not to independent contractors.” Id. (citing Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 380 (7th Cir.1991) (“insurance agent was independent contractor, not an employee of insurance company, and thus not protected by Title VII”) (hyperlink added); Lutcher v. Musicians Union Local 47, 633 F.2d 880 (9th Cir.1980) (“musician was not entitled to protections of Title VII where musician performed as independent contractor, not as employee”)) (internal citation omitted).

INDEPENDENT CONTRACTORS: TITLE VII INAPPLICABILITY BASED ON DEFINITION AND LEGISLATIVE HISTORY: “The federal decisions appear to be based in part on the definition of ’employee’ contained in Title VII, 42 U.S.C. § 2000e(f) (’employee’ means an individual employed by an employer), and in part on legislative history.” Marquis, 130 Wn.2d at 109-10 (citing Musicians Union, 633 F.2d at 883 (“the legislative history of Title VII reveals that the statute’s purpose was to eliminate discrimination in employment; consequently, there must be some connection with an employment relationship for Title VII to apply”) (hyperlinks added).

[1-13]  WLAD vs. TITLE VII: TITLE VII NOT HELPFUL IN DETERMINING THE SCOPE OF RCW 49.60.030(1): “The language of our statute’s definition section differs from that of Title VII.” Id. at 110 (hyperlink added).

[1-13a] The Term “Employee”: “RCW 49.60.040(4) states that the term ’employee’ does not include a person employed by his or her parents, spouse, or child, or one who is in the domestic service of any person. The term ’employee’ is not further defined, and we therefore presume the legislature intended the word to mean what it did at common law, as limited by the statute.” Marquis, 130 Wn.2d at 110 (citing In re Brazier Forest Prods., Inc., 106 Wash.2d 588, 595, 724 P.2d 970 (1986)) (hyperlink added).

“The common law distinguishes between employees and independent contractors, based primarily on the degree of control exercised by the employer/principal over the manner of doing the work involved.” Id. (citing Fardig v. Reynolds, 55 Wash.2d 540, 544, 348 P.2d 661 (1960); Phillips v. Kaiser Aluminum & Chem. Corp., 74 Wash.App. 741, 749 n. 23, 875 P.2d 1228 (1994)).

“We read the statute with that distinction in mind. However, we find that the statute does not foreclose a cause of action to an independent contractor because, by its own terms, RCW 49.60.030(1) does not limit the actions which may be brought to those listed in the statute.” Marquis, 130 Wn.2d at 110 (hyperlink added).

[1-13b] Categories of Discrimination: “Unlike our state law against discrimination, Title VII is limited to employment discrimination. Unlike our state law against discrimination, Title VII does not contain a broad statement of the right to be free of discrimination in other areas[ ][;] [o]ur state law does.” Id. (citing RCW 49.60.010) (footnote omitted) (hyperlinks added).

[1-13c] Policy of Liberal Construction: “While Title VII of the Civil Rights Act of 1964 is similar to RCW 49.60.180, the provision delineating unfair practices in employment, there is no provision in the federal law which sets forth the equivalent of the broad language of RCW 49.60.030(1) and there is no statutory provision requiring liberal construction in order to accomplish the purposes of the act.” Marquis, 130 Wn.2d at 110-11 (citing Allison, 118 Wash.2d at 88, 821 P.2d 34) (hyperlinks added).

“Federal cases interpreting Title VII are thus not helpful in determining the scope of RCW 49.60.030(1).” Marquis, 130 Wn.2d at 111.

[1-14]  WASHINGTON STATE HUMAN RIGHTS COMMISSION (WSHRC): COURTS MUST GIVE GREAT WEIGHT TO STATUTE’S INTERPRETATION BY AGENCY CHAGRED WITH ITS ADMINISTRATION “In addition to the language of the statute itself, we may also look to the Human Rights Commission‘s interpretation of the law as an aid in construing RCW 49.60.”  Marquis, 130 Wn.2d at 111 (hyperlink added). “A court must give great weight to the statute’s interpretation by the agency which is charged with its administration, absent a compelling indication that such interpretation conflicts with the legislative intent.” Id. (citing Washington Water Power Co. v. Washington State Human Rights Comm’n, 91 Wash.2d 62, 68-69, 586 P.2d 1149 (1978)).

[1-15]  WASHINGTON ADMINISTRATIVE CODE (WAC): INDEPENDENT CONTRACTORS: “WAC 162-16-170, a rule promulgated by the Human Rights Commission, states in pertinent part:

(1) Purpose of section. RCW 49.60.180 defines unfair practices in employment. A person who works or seeks work as an independent contractor, rather than as an employee, is not entitled to the protection of RCW 49.60.180….

(2) Rights of independent contractor. While an independent contractors [sic] does not have the protection of RCW 49.60.180, the contractor is protected by RCW 49.60.030(1) from discrimination because of race, creed, color, national origin, sex, handicap, or foreign boycotts. The general civil right defined in RCW 49.60.030(1) is enforceable by private lawsuit in court under RCW 49.60.030(2) but not by actions of the Washington state human rights commission.

Marquis, 130 Wn.2d at 111 (citing WAC 162-16-170 (currently WAC 162-16-230)) (hyperlinks added).

Analysis of the issue
-ANALYSIS-

[1-16]  DEFENDANT’S ARGUMENT: NARROW READING OF STATUTE: In this case, “[t]he City argues that RCW 49.60.030 should be construed so as to limit causes of action for discriminatory treatment to violations of the particular rights listed in the statute. In the City’s view the statute should be read to prohibit discrimination in ’employment’ and would apply to protect ’employees,’ but not ‘independent contractors’ hired to perform services.” Marquis, 130 Wn.2d at 107.

COURT’S RESPONSE: Here, the Court initially determined “[t]he Court of Appeals found that the ‘statutory list [contained in RCW 49.60.030], by its own terms, is not exclusive’ and can be interpreted to incorporate other rights recognized in state or federal law.” Marquis, 130 Wn.2d at 107 (internal citations omitted) (second alteration in original) (hyperlink added). The Court agreed and concluded “that RCW 49.60.030(1) is unambiguous to the extent that it sets forth a nonexclusive list of rights.” Marquis, 130 Wn.2d at 107 (hyperlink added).

[1-17]  DEFENDANT’S ARGUMENT: HUMAN RIGHTS COMMISSION HAS NO AUTHORITY TO ENACT THE SUBJECT REGULATION: “The City argued, and the trial court agreed, that the Human Rights Commission had no authority to enact this regulation.” Id. at 111.

COURT’S RESPONSE: The Court disagreed. See id at 111. “An administrative agency is limited to the powers and authority granted to it by the legislature.” Id. (internal citations omitted).

[1-18]  DEFENDANT’S ARGUMENT: THE REGULATION CREATES AN ADDITIONAL PROTECTED CLASS: “The City argues that the WAC regulation relating to independent contractors creates an additional protected class–that of ‘independent contractors.'” Id. at 112.

COURT’S RESPONSE: “The regulation does not create a new class. Under the statute or under the regulation, an independent contractor would have to show that he or she was a member of a protected class (i.e., a class based on race, creed, sex, national origin, etc.), not merely that he or she was an independent contractor.” Id.

“In light of the statute’s broad mandate to the Human Rights Commission to prevent and eliminate discrimination, we find WAC 162-16-170(2) consistent with the legislative purpose behind the act, a valid exercise of the Commission’s authority, and we give it great weight in construing RCW 49.60.030(1).” Id. (paragraph formatting and hyperlink added).

[1-19]  COURT OF APPEALS’ ANALYSIS: RCW 49.60.030(1) COULD BE INTERPRETED TO INCLUDE RIGHT TO BE FREE OF DISCRIMINATION IN MAKING OF CONTRACTS: “The Court of Appeals looked to civil rights accorded under related federal statutes to determine that RCW 49.60.030(1) could reasonably be interpreted to include the right to be free of discrimination in the making of contracts.” Id. at 112 (hyperlink added).

COURT’S RESPONSE: WITHOUT REFERENCE TO FEDERAL LAW, RCW 49.60.030(1) CAN BE INTERPRETED TO INCLUDE CIVIL RIGHT OF INDEPENDENT CONTRACTORS TO BE FREE OF UNLWAFUL DISCRIMINATION IN MAKING & PERFORMANCE OF CONTRACTS FOR PERSONAL SERVICES: “While federal laws can provide assistance in interpreting the Washington law against discrimination, it is unnecessary to look to the federal law to determine whether a cause of action exists under state law in this case. RCW 49.60.030(1) is broadly stated, is to be liberally construed and, as part of the law against discrimination, is meant to prevent and eliminate discrimination in the State of Washington. Without reference to federal law, RCW 49.60.030(1) can be interpreted to include the civil right of independent contractors to be free of unlawful discrimination in the making and performance of contracts for personal services.” Id. (hyperlinks added).

Conclusion of the issue
-CONCLUSION-

[1-20]  RCW 49.60.030(1) INCLUDES RIGHT OF INDEPENDENT CONTRACTOR TO BE FREE OF DISCRIMINATION BASED ON PROTECTED CLASSES (AFFIRMED): In this case, the Court applied general rules of statutory construction and held that “an independent contractor who is discriminated against in the making or performance of a contract for employment because of sex, color, creed, national origin or disability has a cause of action for affirmative relief and for damages under RCW 49.60.030.” Id. at 112-113, 115-16. Accordingly, the Court affirmed the Court of Appeals. Id. at 116.

ISSUE #2:  Did the Plaintiff present sufficient evidence to establish a prima facie case of discrimination?

Rule(s) of the issue
-RULE(S)-

[2-1]  MCDONNELL DOUGLAS BURDEN-SHIFTING FRAMEWORK (“MCDONNELL DOUGLAS FRAMEWORK”):  UNFAIR PRACTICES AND MAKING OF CONTRACTS: “This court has consistently applied the burden allocation scheme developed by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Xieng, 120 Wash.2d at 519, 844 P.2d 389.”  Marquis, 130 Wn.2d at 113. “That scheme of proof is the same whether applied in an employment discrimination case alleging an unfair practice or alleging discrimination in the making of a contract.” Id. (internal citation omitted).

[2-2]  ELEMENTS OF THE MCDONNELL DOUGLAS FRAMEWORK: SEX DISCRIMINATION BASED ON DISPARATE TREATMENT:

[2-2a]  Step 1 – The Prima Facie Case (Plaintiff’s Burden): “Essentially, under the framework established by McDonnell Douglas, the plaintiff has the initial burden of proving a prima facie case. In any sex discrimination action based on disparate treatment, the plaintiff must demonstrate that she or he was treated differently than persons of the opposite sex who are otherwise similarly situated.” Marquis, 130 Wn.2d at 113 (internal citation omitted).

“Therefore, in an action for discrimination in the making and performance of an employment contract, the plaintiff in a sex discrimination case must show[:]

(1) membership in a protected class;

(2) the plaintiff was similarly situated to members of the opposite sex, i.e., that he or she was qualified for the position applied for or was performing substantially equal work;

(3) because of plaintiff’s sex he or she was treated differently than members of the opposite sex, i.e., that he or she was denied the position, was offered a contract only on terms which made the performance of the job more onerous or less lucrative than contracts given to members of the opposite sex, or, once offered the contract, was treated in a manner that made the performance of the work more difficult than that of members of the opposite sex who were similarly situated.

Id. at 113-14 (internal citations omitted) (paragraph formatting added).

[2-2b]  Step 2 – Legitimate Nondiscriminatory Reason (Defendant’s Burden): “Once the plaintiff establishes a prima facie case, an inference of discrimination arises. In order to rebut this inference, the defendant must present evidence that the plaintiff was rejected for the position or was treated differently for a legitimate nondiscriminatory reason.” Id. at 114

[2-2c]  Step 3 – Substantial Factor (Plaintiff’s Burden): “At this point, the plaintiff retains the final burden of persuading the trier of fact that discrimination was a substantial factor in the disparate treatment.” Id. (internal citation omitted.

Analysis of the issue
-ANALYSIS-

[2-3] DEFENDANT’S ARGUMENT: No prima facie case: “The City argues here that even if an independent contractor has a cause of action under RCW 49.60.030(1), Ms. Marquis has not presented sufficient evidence to establish a prima facie case of discrimination in compensation or constructive discharge.” Id. at 114.

“First, the City argues that, as a matter of law, there can be no discrimination in the making of a contract where the terms of the contract have been offered to all eligible contractors, regardless of sex, race, creed, national origin or disability, after a public solicitation.” Id.

COURT’S RESPONSE: Plaintiff established prima facie case: “[T]the original request for proposals does not affect Ms. Marquis’ claim that she was discriminated against in the negotiations for the renewal of her contract. Ms. Marquis has demonstrated that[:]

(1) she is a member of a protected class;

(2) she was performing substantially similar work as the male golf professionals hired by the City as independent contractors; and

(3) she was treated differently in the negotiation of the renewal of her contract and possibly in the original negotiation of her contract, as well as during the performance of her contract with the City.

Id. at 115 (paragraph formatting added).

[2-4]  DEFENDANT’S ARGUMENT: Plaintiff failed to provide rebuttal: “The City claims Ms. Marquis has not rebutted the City’s evidence that the work done by the three professional golfers hired by the City was not substantially equal.” Id. at 115.

COURTS RESPONSE: Plaintiff presented more than conclusory statements, and the difference in jobs is a question for jury: “Ms. Marquis has presented more than conclusory allegations with respect to this element of her case by describing the nature of the three golf courses, the comparative golfing seasons and number of golfers at each course, and describing the job of the golf professionals. Whether the differences in the jobs constitute legitimate nondiscriminatory reasons for the difference in treatment is a question for the jury.” Id.

Conclusion of the issue
-CONCLUSION-

[2-5]  SUMMARY JUDGMENT INAPPROPRIATE: THERE ARE GENERAL ISSUES OF MATERIAL FACT: “The City’s rebuttal of Ms. Marquis’ case creates a genuine issue of material fact exists that makes summary judgment inappropriate. The ultimate burden of proving discrimination is upon Ms. Marquis.” Id.

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Sangster v. Albertson’s Inc., 99 Wn.App. 156 (Div. 3 2000)

This is a case summary of Sangster v. Albertson’s Inc., 99 Wn.App. 156, 991 P.2d 674 (Div. 3 2000). Subjects include, but are not limited to the following:

»  SEXUAL HARASSMENT BY SUPERVISOR

»  IMPUTING HARASSMENT

» FARAGHER-ELLERTH AFFIRMATIVE DEFENSE

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Sangster v. Albertson's Inc., 99 Wn.App. 156, 991 P.2d 674 (Div. 3 2000)
Sangster v. Albertson’s Inc., 99 Wn.App. 156, 991 P.2d 674 (Div. 3 2000)
case summarY – 12 Facts:

[1]  In 1989, Brenda Sangster started working in the service deli Department of the Albertson’s store in Lewiston, Idaho.

[2]  In December 1992, she was promoted to service deli manager in the Clarkston[, Washington] Albertson’s store.

[3]  Approximately two and one-half years later, she resigned her position at the Clarkston store and returned to a nonmanager position at the Lewiston Albertson’s.

[4]  During Ms. Sangster’s tenure as deli manager at the Clarkston Albertson’s, the store director was Terry Myers.

[5]  Ms. Sangster claims that while she was an employee at the Clarkston Albertson’s store, she was the victim of Mr. Myers’ sexual harassment.

[6]  In October 1996, she filed a sexual harassment action against Albertson’s and Mr. Myers.

[7]  The type of conduct about which Ms. Sangster complains is summarized as follows:

[A]  Ms. Sangster was constantly referred to as “honey,” “sweety,” and “little girl” by Mr. Myers.

[B]  Mr. Myers made sexually suggestive and demeaning comments to Ms. Sangster regarding shorts. Regarding this incident, Ms. Sangster asked Mr. Myers if it was possible for the deli department employees to wear shorts at the outdoor Albertson’s store promotions. Mr. Myers told Ms. Sangster that this was okay if she bought or wore a size too small for her.

[C]  Ms. Sangster was present at a managers’ meeting concerning Vicki Fuson as employee of the month. At the meeting, Mr. Myers nominated Ms. Fuson as the employee of the month since she looked great in a bathing suit and made a gesture regarding Ms. Fuson’s breasts.

[D]  There were numerous statements and comments by Mr. Myers to Ms. Sangster in which he stated to Ms. Sangster, “What’s the matter — didn’t you get any last night?” This particular comment was not limited to one incident but was repeatedly made by Mr. Myers to Ms. Sangster in the presence of co-workers and at the Thursday managers’ meeting in front of other department managers.

[E]  On one occasion, a friend dropped a dress off at the store for Ms. Sangster. Mr. Myers, in the presence of other employees, asked Ms. Sangster to try the dress on in front of them.

[F]  Mr. Myers made the statement to Ms. Sangster in the service deli department while looking at a display, “Damn that makes my titt[-] hard.”

[G]  At one of the managers’ meetings, Mr. Myers made the comment regarding hot mustard, “Try it, it will make your pecke[-] stand out.”

[H]  Mr. Myers made a comment regarding Ms. Sangster’s flying lessons. He remarked that she should join his mile high club. When she asked what that was, Mr. Myers turned and walked away laughing. Ms. Sangster felt that this comment was of a sexual nature and carried sexual overtones.

[I]  Mr. Myers made comments about the problem with dating younger men. He stated that Ms. Sangster should go out with older men like himself. In this same conversation, Mr. Myers commented to Ms. Sangster that she should travel with him.

[J]  Mr. Myers made other vulgar and demeaning sexual comments to Ms. Sangster at the weekly managers’ meetings.

[K]  Mr. Myers stated that he noticed Ms. Sangster’s performance as service deli manager began to slip the four to six months Before she left the Clarkston store in July 1995.

[8]  Albertson’s and Mr. Myers filed a motion for summary judgment.

[9]  The court found that these actions did not rise to the level of sexual harassment and, accordingly, granted Albertson’s and Mr. Myers’ motion for summary judgment.

[10]  Ms. Sangster filed a motion for reconsideration pursuant to CR 59 and submitted a new affidavit containing additional information.

[11]  The court denied the motion for reconsideration, stating “[t]he new affidavit is an attempt to bring in new evidence[.]”

[12]  The court further ruled that “the requirements of CR 59 have not been satisfied.” Ms. Sangster appeals.

Sangster v. Albertson’s Inc., 99 Wn.App. 156, 991 P.2d 674 (Div. 3 2000) (hyperlinks added).

ISSUE #1:  Did the trial court err in granting Albertson’s and Mr. Meyers’ motion for summary judgment dismissing plaintiff Sangster’s sexual harassment claim?

Rule(s) of the issue
-RULE(S)-

[1-1]  SEXUAL HARASSMENT GENERALLY: “Washington’s law against discrimination [(WLAD)], RCW 49.60, protects employees from sexual harassment.” Sangster v. Albertson’s Inc., 99 Wn.App. 156, 161, 991 P.2d 674 (Div. 3 2000) (citing Coville v. Cobarc Servs., Inc., 73 Wash.App. 433, 438, 869 P.2d 1103 (1994) (citing Glasgow v. Georgia-Pacific Corp., 103 Wash.2d 401, 405, 693 P.2d 708 (1985))) (hyperlink added).

[1-2]  THE WLAD SEXUAL HARASSMENT PROVISION (RCW 49.60.180(3)): “The statute provides in relevant part, ‘[i]t is an unfair practice for any employer … [t]o discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability[.]'” Id. (citing RCW 49.60.180(3)) (alteration in original).

[1-3]  TWO TYPES OF SEXUAL HARASSMENT (QUID PRO QUO & HOSTILE WORK ENVIRONMENT): “Sexual harassment claims are characterized as either ‘quid pro quo harassment’ or ‘hostile work environment’ claims.” Id. (citing DeWater v. State, 130 Wash.2d 128, 134, 921 P.2d 1059 (1996) (quoting Payne v. Children’s Home Soc’y of Wash., Inc., 77 Wash.App. 507, 511 n. 2, 892 P.2d 1102 (1995))) (internal quotation marks omitted).

[1-4]  HOSTILE WORK ENVIRONMENT BASED ON SEX (THE PRIMA FACIE CASE): “To establish a prima facie case for a hostile work environment claim, the employee must demonstrate that there was[:]

(1) offensive, unwelcome contact that

(2) occurred because of sex or gender,

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

(4) can be imputed to the employer.

Id. (citing Doe v. Department of Transp., 85 Wash.App. 143, 148, 931 P.2d 196 (1997) (citing Glasgow, 103 Wash.2d at 406-07, 693 P.2d 708); Coville, 73 Wash.App. at 438, 869 P.2d 1103)) (paragraph formatting added).

[1-5]  HOSTILE WORK ENVIRONMENT — 2ND ELEMENT (OCCURRED BECAUSE OF SEX/GENDER): In the instant case, “[the plaintiff] must prove that she would not have been singled out and caused to suffer the harassment had she been male.” Id. (citing Doe, 85 Wash.App. at 148, 931 P.2d 196). Accordingly, “[t]o defeat a summary judgment motion, [the plaintiff] must produce competent evidence that supports a reasonable inference that [the plaintiff’s] gender was the motivating factor for . . . [the] harassing conduct.” Id. (internal citation omitted).

[1-6]  HOSTILE WORK ENVIRONMENT — 3RD ELEMENT (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. at 162.

PERVASIVENESS: “The harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. at 162-63 (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708).

TOTALITY OF THE CIRCUMSTANCES: “Whether the harassment is such that it creates an abusive working environment may be determined by examining the totality of the circumstances.” Id. at 163 (citing Payne, 77 Wash.App. at 515, 892 P.2d 1102 (citing Glasgow, 103 Wash.2d at 406-07, 693 P.2d 708)).

CONSIDERATIONS: “[The court] . . . consider[s] the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.'” Id. (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).

CASUAL, ISOLATED, OR TRIVIAL INCIDENTS NOT ENOUGH: “‘Casual, isolated or trivial’ incidents are not actionable.” Id. (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708; see also Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998) (“isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment’ “)).

[1-7]  HOSTILE WORK ENVIRONMENT — 4TH ELEMENT (CAN BE IMPUTED TO EMPLOYER): “[A] coemployee’s sexual harassment can be imputed to an employer if that coemployee is a manager who personally participates in the harassment.” Id. (citing Glasgow, 103 Wash.2d at 407, 693 P.2d 708). “The Glasgow formulation of the elements of sexual harassment is taken from federal cases interpreting Title VII.” Id. at 164 (citing Glasgow, 103 Wash.2d at 406-07, 693 P.2d 708) (hyperlink added).

[1-8]  HOSTILE WORK ENVIRONMENT — 4TH ELEMENT (QUALIFIED IMPUTATION BASED UPON SUPERVISOR MISCONDUCT): THE FARAGHER-ELLERTH TEST: “Since Glasgow was decided, several federal cases have held that there should not be automatic imputation where the harasser is a supervisor at the employment site but does not occupy an upper level management position.” Sangster, 99 Wn.App. at 164 (citing Perry v. Harris Chernin, Inc., 126 F.3d 1010 (7th Cir.1997); Torres v. Pisano, 116 F.3d 625 (2nd Cir.1997); Andrade v. Mayfair Mgt., Inc., 88 F.3d 258 (4th Cir.1996)).

“In response to those cases, the United States Supreme Court clarified federal law in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270, 141 L.Ed.2d 633 (1998) and Faragher [v. City of Boca Raton, 524 U.S. 775,] 118 S.Ct. … [2275,] 2292-93[, 2283, 141 L.Ed.2d 662 (1998).]” Sangster, 99 Wn.App. at 164 (emphasis added). Accordingly, “[t]he court established [the] [Faragher-Ellerth] test for determining whether an employer is vicariously liable for a hostile work environment created by a supervisor.” Id. (emphasis added).

THE FARAGHER-ELLERTH TEST: The Faragher-Ellerth test “stated: ‘An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.'” Id. (citing Burlington, 118 S.Ct. at 2261).

THE AFFIRMATIVE DEFENSE: “To prevent this rule from imposing automatic liability and to encourage employers to adopt anti-harassment policies, the court provided employers with an affirmative defense that they could assert to avoid vicarious liability for their supervisor’s misconduct:”

When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see F. Rule Civ. Proc. 8(c).”

Sangster, 99 Wn.App. at 164-65 (emphasis added).

[1-9]  FARAGHER-ELLERTH AFFIRMATIVE DEFENSE (THE EMPLOYERS’ AFFIRMATIVE DEFENSE TO SUPERVISOR-BASED VICARIOUS LIABILITY): “The [Faragher-Ellerth affirmative] defense comprises two necessary elements:

(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and

(b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

Id. at 165 (paragraph formatting added).

CAVEAT: This test is only applicable when no tangible employment action is taken by the employer against the employee.

[1-10]  SUMMARY: SUPERVISOR-BASED VICARIOUS LIABILITY: “[I]f the harassment is actionable and the harasser has supervisory authority over the victim, the presumption is that the employer is vicariously liable for the harassment.” Id. “This presumption may be overcome only if the alleged harassment has not resulted in a tangible employment action, and then only if the employer can prove both elements of the affirmative defense.” Id.

Analysis of the issue
-ANALYSIS-

[1-11]  HOSTILE WORK ENVIRONMENT — 1ST ELEMENT (OFFENSIVE & UNWELCOME CONDUCT): In this case, the Court found that “[t]he parties agree[d] that the conduct was offensive and unwelcome.” Id. at 161. Thus, the Plaintiff “fulfill[ed] the first element of [her] prima facie case.” Id.

[1-12]  HOSTILE WORK ENVIRONMENT — 2ND ELEMENT (OCCURRED BECAUSE OF SEX/GENDER): Next, the Court initially determined that “[s]everal of the incidents Ms. Sangster lists as sexually harassing do not fulfill this element because they were comments made to a group of both males and females and were not motivated by Ms. Sangster’s sex.” Id. at 162. The Court reasoned:

General comments Mr. Myers made at the managers’ meetings like, ‘[t]ry it, it will make your peck[-] stand out,’ or commenting on how a female employee should be employee of the month because she looked good in a swimming suit were not directed at Ms. Sangster and were not motivated by her gender. Also, the comment, ‘[d]amn that makes my titt[-] hard,’ was heard by several other people and was not specifically directed at Ms. Sangster.

Id. (alterations in original).

However, the Court subsequently found that “[t]he remaining incidents appear to have been motivated by Ms. Sangster’s gender[:]

[A] Mr. Myers suggesting that Ms. Sangster order her shorts one size smaller, or try on a dress in front of him, implies that he wanted to look at her in tight shorts or undressed.

[B] Mr. Myers asking Ms. Sangster, “[w]hat’s the matter – didn’t you get any last night?” or remarking that she should join his mile high club, could have been made to either male or female, but were inappropriate comments about her sex life.

[C] Also, Mr. Myers’ comments that Ms. Sangster should go for older men like himself and she could travel with him implied that he wanted to have a relationship with her.

[D] Mr. Myers’ use of the terms, “honey,” “sweety,” and “little girl” in addressing Ms. Sangster and other female employees was definitely based on gender.

The sexual nature of these incidents supports a reasonable inference that the conduct occurred because she was female.

Id.

[1-13]  HOSTILE WORK ENVIRONMENT 3RD ELEMENT (AFFECTED THE TERMS OR CONDITIONS OF EMPLOYMENT): The Court first considered the employer’s arguments:

Albertson’s argues that the alleged sexual harassment was only part of Ms. Sangster’s discontent with her job. Further, Albertson’s minimized the sexual harassment, characterizing it as casual or trivial. Albertson’s maintains that it is not clear that the harassment, without Ms. Sangster’s other problems at the store, was sufficiently pervasive so as to alter the conditions of her employment and create an abusive working environment.

Id. at 163, 991 P.2d 674. However, it dismissed these arguments finding in favor of the Plaintiff concerning the third element:

[T]he evidence is sufficient to create an issue of fact because reasonable persons could reach different conclusions as to whether the harassment altered the conditions of employment. Ms. Sangster has established the third element of her prima facie case.

Id.

[1-14]  HOSTILE WORK ENVIRONMENT 4TH ELEMENT (CAN BE IMPUTED TO EMPLOYER): This was the main issue on appeal. The Court initially considered the following facts regarding the fourth element:

[a] “Ms. Sangster’s complaints about sexual harassment cover a period of time exceeding two and one-half years.”

[b] “During that time, Albertson’s had in effect a policy prohibiting sexual harassment. This policy was stated in its employee handbook which Ms. Sangster was required periodically to read. It stated:

Employees who have been led to believe that promotions, increases in wages, continued employment or any terms of employment are conditioned on sexual favors, or who feel that they have been subject to any type of sexually offensive work environment or incidents of retaliation, must immediately contact the hotline number 1-800-841-6371. You need not identify yourself to report improper activities via the hotline.

[c] “This policy was effectuated by the hotline number, periodic distribution of notices to each store employee, and special training sessions for store directors.”

[d] “Ms. Sangster received a notice from Albertson’s informing her that all employees must ‘comply with our policy prohibiting sexual harassment.’ “

[e] “The notice further instructed employees that if they were aware of supervisors or employees who have violated the policy, they “should immediately report such information to our General Office in Boise via our toll-free Hotline number.”

[f] “Ms. Sangster never used the hotline to report the sexual harassment.”

[g] “She did not contact Albertson’s about the sexual harassment until after she announced she was stepping down as the service deli manager at Clarkston.”

[h] “After she contacted Albertson’s, she was interviewed by a member of its senior management. Thereafter, Albertson’s investigated Ms. Sangster’s claims.”

[i] “Although the investigation failed to substantiate her claims, Albertson’s counseled Mr. Myers that no sexual harassment could be tolerated.”

[j] “There is no evidence that Ms. Sangster was subject to any sexual harassment or retaliation after she made her complaint.”

Id. at 165-66.

The Court then found as follows:

In this case, there is evidence that the employer adopted a policy prohibiting sexual harassment. There is also evidence that the employee did not timely report the harassment to her employer as required by its policy. There is a factual basis for the argument that had she done so, the damages to her and the liability to her employer may have been eliminated or limited by its response to her complaints. Nevertheless, under a rule that imputes automatic liability to an employer for the conduct of a manager, Albertson’s would be automatically liable for Mr. Myers’ conduct.

Id. at 166.

[1-15]  GLASGOW IS NOT CONTROLLING: The Court then considered whether the Glasgow case was controlling and noted the following:

♦ Glasgow “does not discuss the effect of failure to use an anti-sexual harassment complaint procedure.”

♦ “There is no evidence that the Glasgow employer had such a procedure.”

♦ “[I]n describing the four elements of sexual harassment, the court stated what ‘an employee must prove.”

♦ “It did not attempt to articulate defenses which may have been available to the employer.”

Sangster, 99 Wn.App. at 166-67 (internal citations omitted). Accordingly, the Court concluded that Glasgow was not controlling in the instant case.

Conclusion of the issue
-CONCLUSION-

[1-16]  EVIDENCE SUFFICIENT TO SUSTAIN SEXUAL HARASSMENT CLAIM UNDER RCW 49.60.180 (REVERSED & REMANDED): The Court held as follows:

Viewed in the light most favorable to Ms. Sangster, as the nonmoving party, the evidence was sufficient to sustain a claim of sexual harassment under RCW 49.60.180.

Albertson’s and Mr. Myers should not have been granted summary judgment. There is a genuine issue of material fact as to whether Mr. Myers sexually harassed Ms. Sangster and whether such conduct created a hostile work environment.

If these issues should be resolved against Albertson’s, it would be liable for Mr. Myers’ conduct, unless it prevails on the affirmative defense described in Burlington and Faragher.

Sangster, 99 Wn.App. at 167 (hyperlink and paragraph formatting added). As a result, the Court reversed the trial court decision and remanded for trial.

NOTABLES & IMPLICATIONS:

POLICY BEHIND THE FARAGHER-ELLERTH DEFENSE

(1)  POLICY: “In adopting an affirmative defense limiting employer liability, the Burlington court stated it was consistent with ‘Title VII’s purpose to the extent it would encourage the creation and use of anti-harassment policies and grievance procedures.’ ” Sangster, 99 Wn.App. at 166 (citing Burlington, 118 S.Ct. at 2261).

SUMMARY JUDGMENT & WLAD

(2)  DEFEATING SUMMARY JUDGMENT: “To defeat summary judgment, the employee must establish specific and material facts to support each element of her prima facie case.” Id. at 160 (citing Marquis, 130 Wash.2d at 105, 922 P.2d 43; Kahn v. Salerno, 90 Wash.App. 110, 117, 951 P.2d 321, review denied, 136 Wash.2d 1016, 966 P.2d 1277 (1998)).

(3)  INQUIRY SCOPE: “When reviewing an order of summary judgment, we engage in the same inquiry as the trial court.” Id. at 160 (citing Honey v. Davis, 131 Wash.2d 212, 217, 930 P.2d 908, 937 P.2d 1052 (1997)).

(4)  MATERIAL FACT: “A material fact is one upon which the outcome of the litigation depends.” Id. at 160 (citing Greater Harbor 2000 v. City of Seattle, 132 Wash.2d 267, 279, 937 P.2d 1082 (1997)).

(5)  STANDARD: “Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. at 160 (citing CR 56(c); Hash v. Children’s Orthopedic Hosp. & Med. Ctr., 110 Wash.2d 912, 915, 757 P.2d 507 (1988)).

(6)  STATEMENTS (OPINIONS & CONCLUSORY DECLARATIONS): “[I]n order for a plaintiff alleging discrimination in the workplace to overcome a motion for summary judgment, the worker must do more than express an opinion or make conclusory statements.” Id. at 160 (citing Marquis v. City of Spokane, 130 Wash.2d 97, 105, 922 P.2d 43 (1996)) (internal quotation marks omitted).

(7)  THE SUMMARY JUDGMENT ADMONITION: “Summary judgment should rarely be granted in employment discrimination cases.” Id. at 160 (citing Johnson v. Department of Soc. & Health Servs., 80 Wash.App. 212, 226, 907 P.2d 1223 (1996)).

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

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

»  UNLWAFUL RETALIATION

»  JOB APPLICANTS

»  PROSPECTIVE EMPLOYERS

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Cert. From U.S. District Court in Zhu v. North Central ESD 171, 404 P.3d 504 (Wash. 2017)
Cert. From U.S. District Court in Zhu v. North Central ESD 171, 404 P.3d 504 (Wash. 2017)
case summarY – 21 Facts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[17]  The court denied reconsideration.

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

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

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

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

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

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

Rule(s) of the issue
-RULE(S)-

[1-1]  GENERALLY

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

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

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

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

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

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

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

[1-2]  DEFINITIONS

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

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

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

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

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

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

[1-3]  STRUCTURE

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

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

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

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

[1-4]  PURPOSE

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

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

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

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

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

Analysis of the issue
-ANALYSIS-

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

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

Accordingly, the Court determined both of the following:

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

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

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

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

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

In this case, the Court determined that:

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

(2) “Zhu is obviously a person[ ]”;

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

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

Id. at 508-9.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion of the issue
-CONCLUSION-

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

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

 

Rules of the Issue
-RULES-

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

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

Analysis of the issue
-ANALYSIS-

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

Conclusion of the issue
-CONCLUSION-

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

NOTABLES & IMPLICATIONS:

STATUTORY CONSTRUCTION

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

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

WLAD ANTIRETALIATION PROVISION

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

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

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

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

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

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

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

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

WLAD GENERALLY

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

WLAD POLICY

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

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

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

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

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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

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

Rule(s) of the issue
-RULE(S)-

[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).

Analysis of the issue
-ANALYSIS-

[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)).

Conclusion of the issue
-CONCLUSION-

[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?

 

Rules of the Issue
-RULES-

[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).

Analysis of the issue
-ANALYSIS-

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

Conclusion of the issue
-CONCLUSION-

[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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Martini v. The Boeing Company, 137 Wn.2d 357 (Wash. 1999)

This is a case summary of Martini v. The Boeing Company, 137 Wn.2d 357 (Wash. 1999). Subjects include the following:

»  FAILURE TO PROVIDE REASONABLE ACCOMMODATIONS

»  CONSTRUCTIVE DISCHARGE

»  DAMAGES

»  FRONT & BACK PAY

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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Martini v. The Boeing Company, 137 Wn.2d 357 (Wash. 1999)
Martini v. The Boeing Company, 137 Wn.2d 357 (Wash. 1999)
case summarY – 25 Facts:

[1]  Boeing hired … Martini in … 1978.

[2]  He worked primarily in the AWACS training organization, training Boeing customers (such as the U.S. and foreign governments) to work with the AWACS military aircraft.

[3]  In January 1988 Martini was diagnosed as suffering from sleep apnea, following an incident when he fell asleep at the wheel of his car and drove off the road.

[4]  If untreated, sleep apnea makes it difficult to breathe during sleep and results in deprivation of restful sleep and fatigue.

[5]  Martini was prescribed a continuous positive air pressure (CPAP) machine which is worn during sleep to prevent the breathing cessation characteristic of sleep apnea.

[6]  In 1989, after falling asleep and driving his car off the road for a second time, Martini asked his supervisor at Boeing for accommodations to help him manage his sleep apnea, including relocation and a flexible starting time.

[7]  In June 1990 Martini was scheduled to conduct AWACS training … in England.

[8]  He became concerned about the trip to England because he feared the long travel time … would exacerbate his sleep apnea, causing increased health problems.

[9]  Martini therefore requested vacation in lieu of the trip; however, on the understanding that Boeing would transfer him to a new position and accommodate his health concerns upon his return, he agreed to go to England to conduct the scheduled training.

[10]  Upon his return from England, Martini asked about being transferred to a new position and was told the personnel office was too busy to deal with his request.

[11]  On the same day Martini was asked to prepare for a trip to France to conduct AWACS training courses scheduled to begin a few months later.

[12]  Martini subsequently submitted a letter stating his intent to use his remaining leave and to terminate his employment with Boeing on August 20, 1990.

[13]  On August 21, 1990, he signed papers terminating his employment.

[14]  After leaving Boeing, Martini tried to find work, but was unsuccessful.

[15]  Martini commenced the present action against Boeing, claiming damages for disability discrimination and constructive discharge contrary to RCW 49.60 and seeking reinstatement.

[16]  The trial court granted partial summary judgment in favor of Boeing, dismissing Martini’s separate constructive discharge cause of action.

[17]  The case then proceeded to jury trial on his disability discrimination claim.

[18]  The trial court rejected jury instructions proposed by Boeing which would have prevented Martini from recovering back pay (lost wages calculated from the date the employee stopped work until the date of the verdict) or front pay (calculated from the date of the verdict for a reasonably certain period of time that does not exceed the likely duration of employment) as damages for discrimination.

[19]  The jury was instructed, however, that no damages could be awarded unless proximately caused by the discriminatory act.

[20]  By special verdict the jury found Boeing had discriminated against Martini and had engaged in a closely related series of discriminatory acts contrary to RCW 49.60.

[21]  The jury awarded Martini the following damages for Boeing’s unlawful conduct: lost earnings ($205,356), lost future earnings ($480,932), pain, suffering, and emotional distress ($75,000), and past and future medical expenses ($15,000).

[22]  The trial court then entered judgment on the jury verdict.

[23]  Boeing appealed to Division One, claiming inter alia that, as Martini had not been constructively discharged, he could not be awarded damages for front and back pay.

[24]  The Court of Appeals rejected the argument and affirmed the award of front and back pay.

[25] Boeing petitioned this court for review of the award of damages for front and back pay, and the petition was granted.

Martini v. The Boeing Company, 137 Wn.2d 357 (Wash. 1999) (internal citations omitted) (hyperlink added).

ISSUE #1:  Whether a plaintiff with a successful discrimination claim under RCW 49.60.180(3) may recover front & back pay as part of damages, if the plaintiff establishes the same was proximately caused by an unlawful discrimination?

Rule(s) of the issue
-RULE(S)-

[1-1]  WLAD MANDATES LIBERAL CONSTRUCTION: “[WLAD] … mandates liberal construction, RCW 49.60.020 … and … embodies a public policy of the highest priority.” Martini v. The Boeing Company, 137 Wn.2d 357, 364 (Wash. 1999) (internal quotation marks and citations omitted) (hyperlink added).

[1-2]  WLAD UNFAIR PRACTICES (DISCHARGE & DISCRIMINATION): It is an unfair practice for any employer:

…

(2) To discharge or bar any person from employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person.

(3) To discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person: PROVIDED, That it shall not be an unfair practice for an employer to segregate washrooms or locker facilities on the basis of sex, or to base other terms and conditions of employment on the sex of employees where the commission by regulation or ruling in a particular instance has found the employment practice to be appropriate for the practical realization of equality of opportunity between the sexes.

Id. at 365 (citing RCW 49.60.180).

[1-3]  UNFAIR PRACTICE TO DISCRIMINATE BASED ON DISABILITY: “One of the acts prohibited by the law against discrimination is discrimination by an employer against an employee because of ‘the presence of any sensory, mental, or physical disability.'” Id. at 366 (citing RCW 49.60.180(3)).

[1-4]  UNFAIR PRACTICE TO DISCHARGE BECAUSE OF DISABILITY: “[A]n employer is also prohibited from discharging an employee because of inter alia ‘the presence of any sensory, mental, or physical disability.'” Id. (citing RCW 49.60.180(2)).

[1-5]  WLAD DISCHARGE SECTION INCLUDES PROHIBITION AGAINST CONSTRUCTIVE DISCHARGE: “The subsection dealing with unlawful discharge of an employee [(i.e., RCW 49.60.180(2))] has been interpreted to include a prohibition against constructive discharge.” Martini, 137 Wn.2d at 366 (citing Bulaich v. AT & T Info. Sys., 113 Wash.2d 254, 259, 778 P.2d 1031 (1989)) (hyperlink added).

[1-6]  CONSTRUCTIVE DISCHARGE DEFINED: “Constructive discharge occurs where an employer forces an employee to quit by making that employee’s work conditions intolerable.” Id. at fn. 3 (citing Barrett v. Weyerhaeuser Co. Severance Pay Plan, 40 Wash.App. 630, 631, 700 P.2d 338 (1985)).

“The doctrine of constructive discharge has been described by this court as requiring ‘a deliberate act of the employer creating the intolerable condition, without regard to the employer’s mental state as to the resulting consequence.” Id. (citing Bulaich, 113 Wash.2d at 261).

[1-7]  DISCHARGE OR CONSTRUCTIVE DISCHARGE CAN RESULT FROM WRONGFUL DISCRIMINATION: “A wrongful act of discrimination under the statute does not necessarily lead to discharge of the employee, but it is possible that discharge or constructive discharge can result from such an act.” Id. at 366.

[1-8]  DISTINCTION IN WLAD BETWEEN UNLAWFUL DISCRIMINATION & DISCHARGE MEANS DIFFERENT VIOLATIONS: “[S]ince … [WLAD] … deals separately with unlawful discrimination against an employee and unlawful discharge of an employee, it is clear that each of these acts amounts to a different violation of the law against discrimination and gives rise to a separate cause of action under the statute. This would be true even if the claim for discrimination and the claim for discharge arose from the employer’s same act.” Id.

[1-9]  WLAD REMEDIES FOR UNFAIR PRACTICES: “[T]he law against discrimination expressly provides:

Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964….”

Id. at 366-67 (citing RCW 49.60.030(2)).

[1-10]  WLAD PLAIN LANGUAGE SHOWS VICTIMS OF VIOLATIONS ENTITLED TO CLAIM FOR DAMAGES: “[The] … plain statutory language [of RCW 49.60.030(2)] makes it clear that a person who suffers from any violation of … [WLAD] shall have a claim for damages.” Martini, 137 Wn.2d at 367 (hyperlink added).

[1-11]  VIOLATION OF RCW 49.60.180(3) ENTITLES VICTIMS TO CLAIM FOR DAMAGES UNDER RCW 49.60.030(2) INDEPENDENT OF WRONGFUL DISCHARGE OR CONSTRUCTIVE DISCHARGE: “A person who was discriminated against by an employer in violation of RCW 49.60.180(3) … [has] a claim for damages under RCW 49.60.030(2).” Martini, 137 Wn.2d at 367 (hyperlinks added). According to the Court:

This claim could be asserted regardless of whether or not the employee had been discharged or constructively discharged in violation of RCW 49.60.180(2). The statute clearly does not require that a discharge violating RCW 49.60.180(2) must occur as a condition precedent to a claim for damages under RCW 49.60.030(2). To the contrary, the statutory language unambiguously states that any violation of the statute will form a basis for a claim for damages.

Martini, 137 Wn.2d at 367 (hyperlinks added).

[1-12]  RCW 49.60.030(2) MANDATES A CLAIM FOR ACTUAL DAMAGES: RCW 49.60.030(2) “unambiguously states that when any violation of the statute occurs, the person injured shall have a claim for ‘actual damages.'” Martini, 137 Wn.2d at 367.

[1-13]  ACTUAL DAMAGES ARE SYNONYMOUS WITH COMPENSATORY DAMAGES: “‘Actual damages’ is a [t]erm used to denote the type of damage award as well as the nature of injury for which recovery is allowed; thus, actual damages flowing from injury in fact are to be distinguished from damages which are nominal, exemplary or punitive.” Id. (citing Rasor v. Retail Credit Co., 87 Wash.2d 516, 554 P.2d 1041, 1049).

“‘Actual damages’ are synonymous with compensatory damages.” Id. (citing Black’s Law Dictionary 35 (6th ed.1990)). “As the dictionary definition notes, Washington courts have interpreted the term ‘actual damages’ in this manner.” Id. at 367-68 (internal citations omitted).

[1-14]  RCW 49.60.030(2) MANDATES FULL COMPENSATORY DAMAGES FOR VIOLATIONS OF RCW 49.60.180(3): RCW 49.60.030(2) “provides a person who has been discriminated against in violation of RCW 49.60.180(3) with a remedy for full compensatory damages, excluding only nominal, exemplary or punitive damages.” Martini, 137 Wn.2d at 368 (hyperlink added).

[1-15]  FRONT & BACK PAY AWARD UNDER 49.60.180(3) NOT CONTINGENT UPON SEPARATE & SUCCESSFUL WRONGFUL DISCHARGE CLAIM: “T]here is nothing in the plain language of the statute which conditions an award of damages for front or back pay for a violation of RCW 49.60.180(3) upon a separate and successful claim for wrongful discharge under RCW 49.60.180(2).” Martini, 137 Wn.2d at 368 (hyperlinks added).

[1-16]  WLAD DOES NOT LIMITED TYPE OF COMPENSATION FOR VIOLATION OF RCW 49.60.180(3): WLAD “does not in any way limit the type of compensation that can be claimed for discrimination violating RCW 49.60.180(3), but the usual rules which govern the elements of damage for which compensation may be awarded apply.” Martini, 137 Wn.2d at 368.

[1-17]  PROXIMATE CAUSE & MITIGATION LIMIT FRONT AND BACK PAY IF NO CONSTRUCTIVE DISCHARGE: “The determinations of both proximate cause and mitigation are factual matters for the jury, operating to limit front and back pay awards in cases where there has been discrimination but no finding of constructive discharge.” Id. at 368.

[1-18]  WLAD PERMITS FRONT & BACK PAY: “Washington’s law against discrimination (RCW 49.60) permits recovery of front and back pay for a successful discrimination claim when these damages are proximately caused by unlawful discrimination.” Martini, 137 Wn.2d at 364 (hyperlink added).

[1-19]  CONSTRUCTIVE DISCHARGE NOT REQUIRED FOR FRONT & BACK PAY UNDER RCW 49.60.180(3): “A Plaintiff with a successful disability discrimination claim under RCW 49.60.180(3) is not required to prove a separate claim of constructive discharge in order to obtain damages for front and back pay.” Martini, 137 Wn.2d at 363.

Analysis of the issue
-ANALYSIS-

[1-20]  BOEING’S ANALOGOUS CASES: In this case, Boeing argued that “damages for front and back pay cannot be awarded for an act of discrimination in violation of RCW 49.60.180(3) unless there is a separate, successful claim for discharge or constructive discharge under RCW 49.60.180(2).” Martini, 137 Wn.2d at 363.

Boeing further argued that the Court in Binkley v. City of Tacoma, 114 Wn.2d 373, 787 P.2d 1366 (1990), and Glasgow v. Georgia Pacific Corp., 103 Wash.2d 401, 693 P.2d 708 (1985), applied Boeing’s proposed rule. Martini, 137 Wn.2d at 369.

However, the Court distinguished both Binkley and Glasgow from the instant case.

[1-21]  BINKLEY v. CITY OF TACOMA: In Binkley, “an employee claimed violation of his free speech rights and constructive discharge.” Martini, 137 Wn.2d at 369. The employee won on the free speech issue but lost on the constructive discharge claim.

This Court then “vacated the jury verdict on the free speech issue and affirmed on the constructive discharge claim” thereby leaving the employee with no successful claims for relief. See id.

Nevertheless, Boeing relied “on a statement in Binkley that ‘back pay could have been awarded only if Binkley was constructively discharged.'” Martini, 137 Wn.2d at 369 (internal citation omitted). But the Court distinguished Binkley declaring:

The plaintiff was unsuccessful in both his constitutional claim […] and his claim for constructive discharge. He therefore had no basis for an entitlement to damages […] the court’s statement about the damages that the plaintiff might have claimed if the substantive issues had been decided differently have no bearing on whether loss of pay can be awarded in a wrongful discrimination suit.

Martini, 137 Wn.2d at 369 (emphasis added).

The Court also distinguished Binkley from Martini in that “Binkley involved a free speech issue and did not involve a claim under RCW 49.60.” Martini, 137 Wn.2d at 369. The Court then evaluated Glasgow.

[1-22]  GLASGOW v. GEORGIA-PACIFIC CORP: In Glasgow, the Court “set out the test under RCW 49.60.180(3) for discrimination due to sexual harassment, finding that the plaintiffs suffered discrimination in violation of the statute and affirming an award of damages for ‘physical, emotional and mental suffering.'” Martini, 137 Wn.2d at 369 (internal citation omitted).

Boeing supported its argument by relying on the Court’s statement in Glasgow that “the evidence in this case was not sufficient to convince the trial court, as the trier of fact, that either of the employees’ resignations constituted a constructive discharge such as to justify additional damages on account thereof.” Martini, 137 Wn.2d at 369-70 (internal citation omitted).

However the Court distinguished Glasgow, stating:

There is nothing in Glasgow which suggests a different kind of damages can be claimed for a constructive discharge violation of the law against discrimination as opposed to a discrimination violation of the statute. At best, Glasgow simply suggests that a different amount of damages might be awarded in a case where there was constructive discharge (the suggestion being that where an employee is constructively discharged, higher damages may be appropriate).

Martini, 137 Wn.2d at 370.

[1-23]  MARTINI’S ANALOGOUS CASE: In response to Boeing’s argument, Martini, cited Dean v. Municipality of Metro. Seattle-Metro, 104 Wash.2d 627, 708 P.2d 393 (1985).

In Dean, the Court upheld an award of emotional distress damages, stating:

Under RCW 49.60, proof of discrimination results in a finding of liability. The plaintiff, once having proved discrimination, is only required to offer proof of actual anguish or emotional distress in order to have those damages included in recoverable costs pursuant to RCW 49.60. The damages result from the injury, the discrimination.

Martini, 137 Wn.2d at 370-71.

The Court then noted both that “in Dean the instruction to the jury to award damages for lost earnings (with interest thereon) was not challenged by the parties and was affirmed by this court […] and […] the reasoning in Dean suggests that damages which are proximately caused by the wrongful action may be claimed.” Martini, 137 Wn.2d at 370-71 (emphasis added).

Ultimately, the Court found that “[a]lthough not directly controlling, Dean is in contradiction to the argument made by Boeing that in certain situations a victim of discrimination in violation of RCW 49.60.180(3) may not claim front or back pay.” Martini, 137 Wn.2d at 371.

[1-24]  THE COURT’S ANALOGOUS CASE: The Court eventually cited Curtis v. Security Bank, 69 Wash.App. 12, 847 P.2d 507 (1993), and found that it indicated “Washington courts have been willing to affirm awards of damages for front and back pay under RCW 49.60 in cases where there has been no constructive discharge.” Martini, 137 Wn.2d at 372.

In Curtis, a bank employee developed a hip condition and was voluntarily laid off. Martini, 137 Wn.2d at 371. She sued her employer for failing to accommodate her disability in violation of WLAD. Id. at 371-72. “The trial court entered judgment in the employee’s favor, awarding damages for front and back pay. The employer appealed and the award of damages was affirmed.” Id. at 372. There was no separate claim for either discharge or constructive discharge.

The Court ultimately found “that the case law interpreting RCW 49.60 does not support Boeing’s argument. Binkley and Glasgow are not controlling and Dean is clearly inconsistent with the position advocated by Boeing.” Martini, 137 Wn.2d at 372.

Conclusion of the issue
-CONCLUSION-

[1-25]  WLAD PROVIDES A REMEDY OF ACTUAL OR COMPENSATORY DAMAGES: The Court concluded WLADs plain language provides “a remedy of actual (or compensatory) damages for an employee who has been injured in violation of RCW 49.60.” Martini, 137 Wn.2d at 377.

[1-26]  WLAD DOES NOT PREDICATE BACK PAY UPON SEPARATE CONSTRUCTIVE DISCHARGE FINDING: Moreover, “[t]he statute does not predicate an award of back pay for discrimination upon a separate finding of constructive discharge.” Id. at 377-78.

And “Washington case law, in particular Dean, supports the proposition that back pay may be awarded for a discriminatory act in violation of RCW 49.60.180(3) even if there is no finding of constructive discharge, so long as the damages were proximately caused by the wrongful act.” Martini, 137 Wn.2d at 378.

[1-27]  COURT OF APPEALS AFFIRMED: The Court affirmed the Court of Appeals.

ISSUE #2:  Does Title VII and Washington’s law against discrimination have similar remedy provisions such that Title VII case law is applicable to the resolution of this case?

 

Rules of the Issue
-RULES-

[2-1]  WLAD IS BROADER IN SCOPE: “[T]he scope of Title VII is not as broad as RCW 49.60 since Title VII does not protect against discrimination because of marital status, age or disability.” Martini, 137 Wn.2d at 372. (internal citations omitted) (hyperlink added).

Moreover, Title VII does not “contain a direction for liberal interpretation, such as is the mandate in Washington’s law against discrimination.” Id. at 372-73 (citing RCW 49.60.020) (hyperlink added).

Ultimately, “[t]he remedies section of Washington’s law against discrimination is … radically different from the remedies section of Title VII.” Id. at 374.

[2-2]  TITLE VII REMEDIES PROVISION: The remedies provision for Title VII is as follows:

If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay … or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.

Id. at 373 (citing 42 U.S.C. § 2000e-5(g)(1)) (hyperlink added).

[2-3]  TITLE VII COMPENSATORY DAMAGES EXCLUDE BACK PAY: In 1991, “Title VII was amended … to allow for recovery of compensatory and punitive damages in addition to the available equitable remedies.” Id. at 373 (citing 42 U.S.C. § 1981a(a)) (hyperlinks added).

But “compensatory damages were so defined as to exclude an award of back pay:

Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964 [42 U.S.C. § 2000e-5(g) ].

Martini, 137 Wn.2d at 373 (citing 42 U.S.C. § 1981a(b)(2)) (hyperlink added).

Thus, “Title VII specifically mentions back pay but excludes such an award from compensatory damages, leaving back pay as primarily an equitable device.” Id. at 375 (hyperlink added).

[2-4]  TITLE VII BACK PAY IS AN EQUITABLE REMEDY: “Title VII … explicitly regards back pay as an equitable remedy awarded under 42 U.S.C. § 2000e-5(g)(1) in cases where reinstatement is appropriate.” Martini, 137 Wn.2d at 373 (hyperlink added).

“Federal courts have interpreted Title VII in this way, limiting the circumstances in which back pay may be awarded so as to be consistent with the statutory scheme to provide primarily equitable relief.” Id. at 373-74 (hyperlink added).

To support this finding, the Court referenced a Seventh Circuit case as follows:

The Seventh Circuit noted in Brooms v. Regal Tube Co., 881 F.2d 412, 423 (7th Cir.1989): Title VII only provides for equitable relief; a district court cannot award damages, either punitive or compensatory, to redress a violation of Title VII. Consequently, a district court may award back pay to a plaintiff only as an equitable remedy, i.e., if a plaintiff can demonstrate that the defendant discharged him or her, either actually or constructively.

Martini, 137 Wn.2d at 374 (hyperlinks added).

[2-5]  WLAD REMEDIES PROVISION: “Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including a reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964….” Martini, 137 Wn.2d at 374 (citing RCW 49.60.030(2)) (emphasis in original) (hyperlink added).

[2-6]  WLAD COMPENSATORY DAMAGES INCLUDE BACK PAY: “Although RCW 49.60.030(2) also contemplates equitable remedies, such as power to enjoin future violations and to provide for any of the Title VII remedies, the provision very explicitly allows for recovery of ‘actual damages’ which may be awarded as either a sole remedy or in conjunction with an equitable remedy such as an injunction.” Martini, 137 Wn.2d at 374 (emphasis added).

The Court determined that “‘actual damages’ include full compensatory damages.” Id. (citing Rasor v. Retail Credit Co., 87 Wash.2d 516, 554 P.2d 1041 (1976)) (emphasis added).

Thus, in contrast to Title VII damages, “Washington’s law against discrimination provides for a general award of “actual” (or compensatory) damages, with no limitation, qualification, or indication that back pay should be excluded.” Id. at 375.

[2-7]  THE LEGISLATIVE COMMAND TO AWARD DAMAGES IS STRONGER UNDER WLAD THAN TITLE VII: “The use of the word “may” in the remedies provision of Title VII makes it clear that an award of back pay for a breach of Title VII is not mandated by the statute.” Id. at 375 (citing 42 U.S.C. § 2000e-5(g)(1) (stating that when the statute has been violated, the court “may” order affirmative action which “may” include reinstatement with or without back pay)) (hyperlinks added).

“In contrast, Washington’s law against discrimination is more categorical, mandating that a victim of a violation of the statute ‘shall have a civil action … to recover the actual damages.'” Id. (citing RCW 49.60.030(2))(emphasis in original) (hyperlink added).

“The legislative command to award damages is therefore stronger in Washington’s statute than in Title VII.” Id. (hyperlink added).

Analysis of the issue
-ANALYSIS-

[2-8]  SCOPE OF WLAD VS. TITLE VII: In this case, the Court first determined that the scope of Title VII is not as broad as that in WLAD, because (1) Title VII does not cover marital status, age, or disability as a protected class; and (2) Title VII does not contain a “direction for liberal interpretation” unlike WLAD (RCW 49.60.020). Martini, 137 Wn.2d at 372-73.

Consequently, it compared damage provisions.

[2-9]  COMPARISON OF DAMAGE PROVISIONS: The Court determined that Title VII contained damage provisions that were more limited than WLADs.

Particularly, the Court found that Title VII excludes back pay from compensatory damages and regards it as “an equitable remedy awarded under 42 U.S.C. § 2000e-5(g)(1) in cases where reinstatement is appropriate.” Martini, 137 Wn.2d at 373.

In contrast, WLAD “provides for a general award of ‘actual’ (or compensatory) damages, with no limitation, qualification, or indication that back pay should be excluded.” Id. at 375.

The Court further determined that “[t]he legislative command to award damages is … stronger in Washington’s statute than in Title VII,” because Title VII uses the term “may” in its remedies provision whereas WLAD uses the categorical term “shall.” Id.

Conclusion of the issue
-CONCLUSION-

[2-10]  TITLE VII CASE LAW IS INAPPLICABLE TO RESOLUTION OF THIS CASE: The Court concluded that “[s]ince the remedies provisions of Title VII and Washington’s law against discrimination are so different, the Title VII cases cited by Boeing barring an award of back pay absent a finding of constructive discharge are clearly distinguishable from the present case which involves a violation of state law.” Martini, 137 Wn.2d at 375.

Accordingly, the Court found that “[t]he Title VII case law cited by Boeing must be distinguished because the Title VII damages provision differs markedly from Washington’s law against discrimination.” Id. at 377.

ISSUE #3:  Will prohibiting an award of back or front pay for wrongful discrimination absent a successful constructive discharge claim further the WLAD policy?

 

Rules of the issue
-RULES-

[3-1]  TITLE VII POLICY: According to the Ninth Circuit, “[t]he purposes of Title VII are best served when parties, where possible, attack discrimination within the context of their existing employment relationships…. Restricting backpay awards encourages the employee to work with supervisors within the existing job setting and employment relationship in an effort to overcome resistance within that workplace and to eradicate the discrimination.” Id. at 376 (citing Thorne v. City of El Segundo, 802 F.2d 1131, 1134 (9th Cir.1986)) (hyperlink added).

[3-2]  WLAD POLICY IF FURTHERED BY ALLOWING BACK PAY DAMAGES FOR WLAD VIOLATIONS: “[A]llowing the possibility of damages for back pay where an employer has violated the law against discrimination provides an incentive for employers to work with employees in the workplace to eradicate discrimination.” Id. at 377.

[3-3]  THE DOCTRINE OF PROXIMATE CAUSE STILL PROTECTS THE EMPLOYER FROM UNWARRANTED CLAIMS OF BACK PAY DAMAGES UNDER WLAD: “[T]he doctrine of proximate cause operates to prevent an employee from claiming back pay where the termination of employment was not caused by the wrongful act.” Id.

Analysis of the issue
-ANALYSIS-

[3-4]  TITLE VII POLICY IS TOO LIMITED FOR WLAD: The Court considered the Defendant’s policy argument: “[p]rohibiting a back pay award for violation of RCW 49.60.180(3) in cases where there is no constructive discharge would further the aims of Washington’s law against discrimination.” In so doing, the Court evaluated the policy of Title VII according to Ninth Circuit case law — Thorne v. City of El Segundo, 802 F.2d 1131, 1134 (9th Cir.1986), supra.

But the Court reasoned:

[T]his argument does not take into account the burden litigation places upon plaintiffs and the inherent disincentive to quit and litigate rather than to stay on the job. Plaintiffs who leave their place of employment potentially face long and difficult battles to obtain damages for discrimination–even if they can prove that they have been discriminated against and can prove the discrimination was the proximate cause of lost pay, it could still be years Before damages are obtained.

Martini, 137 Wn.2d at 376.

The Court then applied its reasoning to the present case:

“Martini left Boeing in 1990, and his case is still in litigation eight years later. A rational employee is unlikely to decide that quitting and suing is easier than attempting to resolve a dispute in the workplace.”

Id. at 376.

[3-5]  BACK PAY POLICY: “[A]llowing the possibility of damages for back pay where an employer has violated the law against discrimination provides an incentive for employers to work with employees in the workplace to eradicate discrimination.” Id. at 377.

[3-6]  PROXIMATE CAUSE AS A REGULATOR: And “the doctrine of proximate cause operates to prevent an employee from claiming back pay where the termination of employment was not caused by the wrongful act.” Id. at 377.

Conclusion of the issue
-CONCLUSION-

[3-7]  PROHIBITING WLAD BACK/FRONT PAY ABSENT SUCCESSFUL CONSTRUCTIVE DISCHARGE CLAIM DOES NOT FURTHER WLAD POLICY: The Court concluded that “[p]rohibiting an award of back or front pay for wrongful discrimination absent a successful constructive discharge claim would not further the policy behind Washington’s law against discrimination.” Id. at 376.

[3-8]  ALLOWING WLAD BACK PAY INCENTIVISES EMPLOYERS AND EMPLOYEES TO ERADICATE DISCRIMINATION: Moreover, “allowing the possibility of damages for back pay where an employer has violated the law against discrimination provides an incentive for employers to work with employees in the workplace to eradicate discrimination.” Id.

[3-9]  MADATE OF LIBERAL INTERPRETATION PROTECTS WLAD REMEDIES:“[T]he law against discrimination provides a remedy for the employee who had been discriminated against and the liberal interpretation provision of the statute operates to protect that remedy. Id. at 376-77 (citing RCW 49.60.020).

[3-10]  DOCTRINE OF PROXIMATE CAUSE ACTS AS A REGULATOR: And, “[i]n any event, the doctrine of proximate cause operates to prevent an employee from claiming back pay where the termination of employment was not caused by the wrongful act.” Id. at 377.

ISSUE #4:  Should the Court award attorney fees to Martini for responding to this appeal?

 

Rules of the issue
-RULES-

[4-1]  RAP 18.1(a): “If applicable law grants to a party the right to recover reasonable attorney fees or expenses on review, the party must request the fees or expenses as provided in this rule…. ” Id. at 377 (referencing RAP 18.1(a)).

[4-2]  WLAD: “Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including a reasonable attorneys’ fees ….” Id.

Analysis of the issue
-ANALYSIS-

[4-3]  In this case, the Court found that “[i]n light of our rejection of Boeing’s arguments, we find Martini should be awarded attorney fees and costs on appeal in addition to the attorney fees and costs awarded by the trial court.” Id. at 377.

Conclusion of the issue
-CONCLUSION-

[4-4]  The Court awarded “Martini attorney fees on appeal and remand[ed] to the trial court to determine the amount of attorney fees to be awarded.” Id. at 378.

NOTABLES & IMPLICATIONS:

FRONT AND BACK PAY: LIMITATIONS

(1)  “The determinations of both proximate cause and mitigation are factual matters for the jury, operating to limit front and back pay awards in cases where there has been discrimination but no finding of constructive discharge.” Id. at 368.

TITLE VII AND WLAD REMEDIES PROVISIONS ARE SIGNIFICANTLY DIFFERENT

(2)  “Title VII and Washington’s law against discrimination have significantly different remedies provisions … [.]” Id. at 372. “[T]he scope of Title VII is not as broad as RCW 49.60 since Title VII does not protect against discrimination because of marital status, age or disability.” Id. “Nor does Title VII contain a direction for liberal interpretation, such as is the mandate in Washington’s law against discrimination.” Id. at 373 (internal citations omitted). Moreover, the Court declared:

The remedies section of Washington’s law against discrimination is therefore radically different from the remedies section of Title VII. Title VII specifically mentions back pay but excludes such an award from compensatory damages, leaving back pay as primarily an equitable device. But in contrast Washington’s law against discrimination provides for a general award of “actual” (or compensatory) damages, with no limitation, qualification, or indication that back pay should be excluded.

Id. at 374-75.

WLAD POLICY (BACK PAY)

(3)  “[A]llowing the possibility of damages for back pay where an employer has violated the law against discrimination provides an incentive for employers to work with employees in the workplace to eradicate discrimination.” Id. at 376.

(4)  “Furthermore, the law against discrimination provides a remedy for the employee who had been discriminated against and the liberal interpretation provision of the statute operates to protect that remedy.” Id. at 376-77 (citing RCW 49.60.020).

(5)  “In any event, the doctrine of proximate cause operates to prevent an employee from claiming back pay where the termination of employment was not caused by the wrongful act.” Id. at 377.

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