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
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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.
[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).
[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).
[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?
[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.
[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.
[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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