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May 11, 2023October 20, 2024

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)?

[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).

[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).

[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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July 8, 2021October 20, 2024

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

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

» UNLAWFUL RETALIATION

» CO-WORKER LIABILITY

» PRINCIPLES OF STATUTORY CONSTRUCTION

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

CASE SUMMARY – 14 Facts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

The Court then determined as follows:

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

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

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

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

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

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

NOTABLES & IMPLICATIONS:

PRINCIPLES OF STATUTORY CONSTRUCTION

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

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

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

THE WLAD ANTI-RETALIATION PROVISIONS: RCW 49.60.210

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

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July 8, 2021October 20, 2024

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

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

» PROTECTED CLASSES (PERCEIVED DISABILITY)

» TERMINATION BASED UPON PERCEIVED (NONEXISTENT) DISABILITY

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

CASE SUMMARY – 11 Facts:

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

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

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

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

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

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

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

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

[9] The Court refused the invitation.

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

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

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

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

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

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

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

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

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

(i) is medically recognizable or diagnosable;

(ii) exists as a record of history; or

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

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

Id. at 579 (hyperlinks added).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NOTABLES & IMPLICATIONS:

PUBLIC POLICY

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

WASHINGTON STATE HUMAN RIGHTS COMMISSION

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

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