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Monday, October 22, 2018

FREE Legal Forms: AK, CA, HI, ID, OR, WA


   
by Gregory Williams, Esq. |  What are some free resources for reliable and trusted legal forms in Washington State, Alaska, California, Hawaii, Idaho and Oregon? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding). 

WASHINGTON STATE
FREE Washington State Legal Forms is a website designed, developed, and maintained by Attorney Gregory Williams. It both provides free access to trusted legal forms and offers reliability reviews for each source website.

Free forms are categorized and include, but are not limited to, the following subjects:

ALASKA, CALIFORNIA, HAWAII, IDAHO, & OREGON

We've received an overwhelming response to our FREE Legal Forms websites, and we're in the process of enhancing the websites for these states by (1) adding security certificates, (2) making them mobile friendly, and (3) migrating them to a safer and more reliable hosting provider (to see these enhancements, visit our WA State website). In the meantime, these websites will be down. Please check back soon!



 
   


PLEASE NOTE

The information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

The McDonnell Douglas Burden Shifting Framework

by Gregory Williams, Esq. | Under Washington State law, what is the McDonnell Douglas Burden-Shifting Framework (hereinafter, "McDonnell Douglas Framework" or "McDonnell Douglas") and how is it appliedHere's my point of view (NOTE: please read our DISCLAIMER before proceeding).


 THE ORIGIN OF THE FRAMEWORK

The McDonnell Douglas Framework is also known as a burden-shifting scheme. "The burden-shifting schemes, developed initially in the federal courts, were an effort to formulate uniform rules for making a prima facie case." Kastanis v. Educational Employees Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26 (1993) (hyperlink added). "These rules were never intended as a charge to the jury." Id. (citing, United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983)). "Recognizing the 'lack of harmony' among judges on the rules applicable to establishing a prima facie case under title VII, the Supreme Court addressed the difficulty by formulating a 3-step burden-shifting test in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973)." Id. (hyperlink added).


THE MCDONNELL DOUGLAS FRAMEWORK

The McDonnell Douglas burden-shifting framework has three steps:
STEP 1The "plaintiff bears the initial burden of establishing a prima facie case of discrimination, which creates a presumption of discrimination." Scrivener v. Clark College, 181 Wn.2d 439, 446, 334 P.3d 541, (2014) (citing, Riehl, 152 Wn.2d at 149-50; Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26, 865 P.2d 507 (1993)) (internal citations and quotation marks omitted) (emphasis & hyperlink added).
STEP 2"[T]he burden shifts to the defendant, who must articulate a legitimate, nondiscriminatory reason for the adverse employment action." Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 527 (Wash. 2017) (internal citations and quotation marks omitted) (emphasis & hyperlink added).
STEP 3"[I]f the defendant meets this burden, the plaintiff must produce sufficient evidence showing that the defendant's alleged nondiscriminatory reason for the adverse employment action was a pretext." Id. (internal citations omitted) (emphasis & hyperlink added). 

THE POLICY BEHIND THE FRAMEWORK

"The purpose of establishing the prima facie elements under McDonnell Douglas is to 'eliminate[ ] the most common nondiscriminatory reasons for the plaintiff's rejection,' namely, that the plaintiff is unqualified for the position or that the position no longer exists." Mikkelsen, 189 Wn.2d at 531 (citing, Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)) (emphasis added) (hyperlink added).


WASHINGTON STATE ADOPTS THE FRAMEWORK

Intentional discrimination is difficult to prove. See Mikkelsen, 189 Wn.2d at 526 (internal citations omitted). Direct, 'smoking gun' evidence of discriminatory motivation is uncommon, because there will rarely be "eyewitness testimony as to the employer's mental processes." Id. (internal citations omitted). As a result, Washington State courts have "repeatedly emphasized that plaintiffs may rely on circumstantial, indirect, and inferential evidence to establish discriminatory action." Id. (internal citations and quotation marks omitted). Accordingly, the Washington State Supreme Court "has adopted the standard articulated by McDonnell Douglas in discrimination cases that arise out of RCW 49.60.180 and the common law." Kastanis v. Educational Employees Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26 (1993) (citing, Grimwood v. Univ. of Puget Sound, Inc., 110 Wash.2d 355, 364, 753 P.2d 517 (1988); Baldwin v. Sisters of Providence in Wash., Inc., 112 Wash.2d 127, 136, 769 P.2d 298 (1989)) (emphasis added) (hyperlinks added).


SUMMARY JUDGMENT

At summary judgment, the following are special considerations, inter alia, when applying the McDonnell Douglas Framework to WLAD claims:
[1] Summary judgment for an employer is seldom appropriate in employment discrimination cases because of the difficulty of proving discriminatory motivation. 
[2] When the record contains reasonable but competing inferences of both discrimination and nondiscrimination, the trier of fact must determine the true motivation.
[3] To overcome summary judgment, the plaintiff needs to show only that a reasonable jury could find that discrimination was a substantial factor in the employer's adverse employment action. 
See Mikkelsen, 189 Wn.2d at 527-28. 


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Wednesday, October 10, 2018

Definition of State Employee Whistleblower

by Gregory Williams, Esq. | Under Washington State law, what is the definition of state employee whistleblower status? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding). 

I. WASHINGTON LAW AGAINST DISCRIMINATION

Under the Washington Law Against Discrimination (WLAD), it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age (40+); sex (including pregnancy); marital statussexual orientation (including gender identity); race; color; creednational originhonorably discharged veteran or military status; HIV/AIDS and hepatitis C status; the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability; and state employee or health care whistleblower status. It is also an unfair practice for an employer to retaliate against an employee because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit.

II. DEFINITION OF STATE EMPLOYEE WHISTLEBLOWER

In Washington State, there are generally two categories for state employee whistleblower status: (1) reporting and/or perceived reporting; and (2) reprisals and/or retaliatory action.

(1) Regarding Reporting & Perceived Reporting

According to Washington State law, the term “whistleblower” means as follows:

(i) An employee who in good faith reports alleged improper governmental action to the auditor or other public official, as defined in subsection (7) of this section; or

(ii) An employee who is perceived by the employer as reporting, whether they did or not, alleged improper governmental action to the auditor or other public official, as defined in subsection (7) of this section.


(2) Regarding Reprisals & Retaliatory Action

For purposes of the provisions of chapter 42.40 RCW and chapter 49.60 RCW relating to reprisals and retaliatory action, the term “whistleblower” also means as follows:

(i) An employee who in good faith provides information to the auditor or other public official, as defined in subsection (7) of this section, and an employee who is believed to have reported asserted improper governmental action to the auditor or other public official, as defined in subsection (7) of this section, or to have provided information to the auditor or other public official, as defined in subsection (7) of this section, but who, in fact, has not reported such action or provided such information; or

(ii) An employee who in good faith identifies rules warranting review or provides information to the rules review committee, and an employee who is believed to have identified rules warranting review or provided information to the rules review committee but who, in fact, has not done so.


III. ADDITIONAL DEFINITIONS

It’s important to note that some of the above-mentioned terms are defined by Washington State law as follows:

“Auditor” means the office of the state auditor. RCW 42.40.020(1).

“Employee” means any individual employed or holding office in any department or agency of state government. RCW 42.40.020(2).

“Good faith” means the individual providing the information or report of improper governmental activity has a reasonable basis in fact for reporting or providing the information. An individual who knowingly provides or reports, or who reasonably ought to know he or she is providing or reporting, malicious, false, or frivolous information, or information that is provided with reckless disregard for the truth, or who knowingly omits relevant information is not acting in good faith. RCW 42.40.020(3).

“Improper governmental action” means any action by an employee undertaken in the performance of the employee’s official duties:

(i) Which is a gross waste of public funds or resources as defined in this section;

(ii) Which is in violation of federal or state law or rule, if the violation is not merely technical or of a minimum nature;

(iii) Which is of substantial and specific danger to the public health or safety;

(iv) Which is gross mismanagement;

(v) Which prevents the dissemination of scientific opinion or alters technical findings without scientifically valid justification, unless state law or a common law privilege prohibits disclosure. This provision is not meant to preclude the discretion of agency management to adopt a particular scientific opinion or technical finding from among differing opinions or technical findings to the exclusion of other scientific opinions or technical findings. Nothing in this subsection prevents or impairs a state agency's or public official's ability to manage its public resources or its employees in the performance of their official job duties. This subsection does not apply to de minimis, technical disagreements that are not relevant for otherwise improper governmental activity. Nothing in this provision requires the auditor to contract or consult with external experts regarding the scientific validity, invalidity, or justification of a finding or opinion; or

(vi) Which violates the administrative procedure act or analogous provisions of law that prohibit ex parte communication regarding cases or matters pending in which an agency is party between the agency's employee and a presiding officer, hearing officer, or an administrative law judge. The availability of other avenues for addressing ex parte communication by agency employees does not bar an investigation by the auditor. RCW 42.40.020(6)(a)(i)-(vi).

“Improper governmental action” does not include personnel actions, for which other remedies exist, including but not limited to employee grievances, complaints, appointments, promotions, transfers, assignments, reassignments, reinstatements, restorations, reemployments, performance evaluations, reductions in pay, dismissals, suspensions, demotions, violations of the state civil service law, alleged labor agreement violations, reprimands, claims of discriminatory treatment, or any action which may be taken under chapter 41.06 RCW, or other disciplinary action except as provided in RCW 42.40.030. RCW 42.40.020(6)(b).

“Public official” means the attorney general’s designee or designees; the director, or equivalent thereof in the agency where the employee works; an appropriate number of individuals designated to receive whistleblower reports by the head of each agency; or the executive ethics board. RCW 42.40.020(7).

IV. FURTHER DEFINITIONS

And some of the above-referenced definitions also contain legal terms that have been further defined as follows:

“Gross mismanagement” means the exercise of management responsibilities in a manner grossly deviating from the standard of care or competence that a reasonable person would observe in the same situation. RCW 42.40.020(4).

“Gross waste of funds” means to spend or use funds or to allow funds to be used without valuable result in a manner grossly deviating from the standard of care or competence that a reasonable person would observe in the same situation. RCW 42.40.020(5).

“Substantial and specific danger” means a risk of serious injury, illness, peril, or loss, to which the exposure of the public is a gross deviation from the standard of care or competence which a reasonable person would observe in the same situation. RCW 42.40.020(8).

“Use of official authority or influence” includes threatening, taking, directing others to take, recommending, processing, or approving any personnel action such as an appointment, promotion, transfer, assignment including but not limited to duties and office location, reassignment, reinstatement, restoration, reemployment, performance evaluation, determining any material changes in pay, provision of training or benefits, tolerance of a hostile work environment, or any adverse action under chapter 41.06 RCW, or other disciplinary action. RCW 42.40.020(9).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Thursday, October 4, 2018

6 Affordable Divorce Resources In Pierce County

by Gregory Williams, Esq. | In Pierce County, Washington, what are six affordable divorce resources? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding). 

#6     WA STATE MODERATE MEANS PROGRAM
In 2016, more than 2 million people in Washington fell between 200% and 400% of the Federal Poverty Level (poverty guidelines) and were considered of moderate income. This means they probably couldn’t afford a full-fee attorney, yet they did not qualify for free legal aid. The Moderate Means Program (MMP) is a statewide program designed to bridge this gap with attorneys who offer reduced-fee assistance in family, housing, and consumer law cases. 
  • The Program does not provide immediate assistance and cannot guarantee a referral, particularly in some rural communities where attorney resources are limited.

#5     WASHINGTON PARALEGAL SERVICES 
  • (253) 227-8462 | University Place, WA -- by appointment only.
  • Flat fee paralegal services. Call for pricing.
  • Operated by experienced senior paralegal, Tina Krueger
  • Affordable document preparation: child support, divorce, parenting plans, health care directives (living wills), simple wills, quit claim deeds, excise tax affidavits and more.
  • Absolutely NO attorney’s fees.
  • Personalized one-on-one service.
  • Service area includes the entire state of Washington including but not limited to the following Pierce County cities & towns:  Auburn, Bonney Lake, Buckley, Carbonado, DuPont, Eatonville, Edgewood, Enumclaw, Fife, Fircrest, Gig Harbor, Joint Base Lewis-McChord (JBLM), Lakewood, Milton, Orting, Pacific, Puyallup, Roy, Ruston, South Prairie, Steilacoom, Sumner, Tacoma, University Place, and Wilkeson.

#4     PIERCE COUNTY COURT FACILITATOR
  • (253) 798-3627 | 930 Tacoma Ave., Rm. 104 & 119, Tacoma, WA 98402.
  • Some counties charge for courthouse facilitator services. Fees range from $10 to $60 per appointment. Some counties may also, or instead, assess a surcharge on the filing fee for a family law case. Low income parties may request that a filing fee be deferred for payment or waived.
  •  A courthouse facilitator is an individual who assists self-represented parties with their family law cases in superior court.  A person is self-represented if he or she is not represented by an attorney.
  • The courthouse facilitator is not your lawyer, cannot give you legal advice, and will not represent you in court.
  • The Pierce County Family Law Facilitator Office is open 8:30 a.m. until 4:00 p.m., Monday through Friday.
  • Appointments are made by calling the appointment line at 253-798-3627. The appointment line opens at 8:00 a.m. Monday through Friday and closes when all appointments are filled. The appointments are made one week in advance.
  • Family law forms and form packets are available and may be purchased from the Pierce County Law Library.

#3     NORTHWEST JUSTICE PROJECT
  • 1-888-201-1014 | Apply online with  CLEAR*Online.
  • This is Washington’s publicly funded legal aid program.
  • According to the official website:
NJP operates a toll-free intake and referral hotline called CLEAR (Coordinated Legal Education Advice and Referral). CLEAR serves as the statewide, centralized point of access for clients seeking free legal help, including advice, education, limited legal services, self-help materials and, where available, referrals for further representation. NJP attorneys in offices around the state provide assistance and direct representation in high priority, complex cases, including cases that address barriers to persons seeking access to our justice system, and also engage in community education efforts.

#2     TACOMAPROBONO
  • (253) 572-5134 [or] e-mail vls@tacomaprobono.org. 621 Tacoma Avenue South, Suite 303, Tacoma, WA 98402.
  • Tacomaprobono (formerly Volunteer Legal Services) can help with civil legal issues in Pierce County when you cannot afford to hire an attorney.
  • If you call, the organization requests that you leave one message and you will be contacted by an intake specialist who can schedule you for a legal clinic or refer you to other resources as appropriate. The organization also invites you to come to their office for a walk-in intake Monday-Thursday, 9-4 (closed for lunch from noon-1:15 daily).

#1     WALAWHELP.ORG
Washington LawHelp is a guide to free civil legal services for low-income persons and seniors in Washington. This site provides legal education materials and tools that give you basic information on a number of legal problems, and in some cases, detailed instructions and forms to help you represent yourself in court. You can also locate information on free legal aid programs in Washington, including basic eligibility and contact information.
  • Free legal materials and tools providing basic information on a number of legal problems.
  • Free do-it-yourself packets with forms.

LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Divorce and Family Law Attorney to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Sunday, September 30, 2018

Definition of Prima Facie Case

by Gregory Williams, Esq. | Under Washington State laws, what is a prima facie caseHere's my point of view (NOTE: please read our DISCLAIMER before proceeding).


THE DICTIONARY

The term "prima facie" means "at first sight; on first appearance but subject to further evidence or information." Black's Law Dictionary 1228 (8th ed. 2004). And a "prima facie case" means: "1. The establishment of a legally required rebuttable presumption ... [; or] 2. A party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor." Id.


THE CASELAW

The Washington State Supreme Court has declared, "* * * A 'prima facie case' is one where the evidence is sufficient to justify, but not to compel, an inference of liability, or, in other words, evidence to be weighed, but not necessarily to be accepted by a jury or other trier of the fact." Nopson v. City of Seattle, 33 Wn.2d 772, 812, 207 P.2d 674, (1949) (citing McCoy v. Courtney, 25 Wash.2d 956, 962, 172 P.2d 596, 600, 170 A.L.R. 603) (hyperlink added).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Friday, September 28, 2018

Failure To Mitigate Damages: WA State

by Gregory Williams, Esq. | What is the “failure to mitigate damages” defense and how is it typically applied in Washington State employment discrimination cases? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

AFFIRMATIVE DEFENSES

In Washington, defendant-employers usually assert the affirmative defense of “failure to mitigate damages” against plaintiff-employees during litigation of employment discrimination claims. An affirmative defense is a defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s claim, even if all allegations in the complaint are true. Blacks Law Dictionary, p. 451, “defense (affirmative defense)” (Rev 8th Ed. 2004); Bernsen v. Big Bend Elec. Co-op., Inc., 68 Wn.App. 427, 433, 842 P.2d 1047 (1993); CR 8(c). This particular defense is most often asserted when the plaintiff-employee challenges as discriminatory a discrete employment decision, such as a termination or a failure to hire.

FAILURE TO MITIGATE DAMAGES

The burden of proving a failure to mitigate damages in an employment discrimination suit is on the employer, and the employer must show the following to satisfy its burden:
  1. There were openings in comparable positions available for plaintiff elsewhere after defendant terminated or refused to hire plaintiff;
  2. The plaintiff failed to use reasonable care and diligence in seeking those openings;
  3. The amount by which damages would have been reduced if the plaintiff had used reasonable care and diligence in seeking those openings.
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.83 (6th ed.). Juries are typically instructed that they should take into account the characteristics of the plaintiff and the job market in evaluating the reasonableness of the plaintiff's efforts to mitigate damages. Id. Importantly, the plaintiff’s failure to make an ongoing, concerted effort to find comparable employment does not preclude a back pay award. Henningsen v. Worldcom, Inc., 9 P.3d 948, 102 Wn.App. 828 (Wash.App. Div. 1 2000).

AN EXAMPLE: HENNINGSEN v. WORLDCOM, INC.

For example, in Henningsen v. Worldcom, Inc., a plaintiff-employee (Henningsen) brought a sex discrimination lawsuit against her defendant-employer (Worldcom), and the trial court entered (bench trial) judgment in Henningsen’s favor; the award included full back pay. Id. (internal quotations omitted). Worldcom then appealed alleging the trial court erred, because Henningsen failed to mitigate her damages. Id. (internal quotations omitted). Worldcom claimed that there was evidence that she traveled extensively, had a baby, married the baby’s father, and then proceeded to assist him in the management of his own business after she left Worldcom. Id. (internal quotations omitted).

The Court found that there was evidence that Henningsen failed to make an ongoing, concerted effort to find comparable employment and that the trial court even expressed some concerns about Henningsen’s underemployment. Id. (internal quotations omitted). But the Court also found that there was evidence that she worked on a limited basis for her husband’s business and tried to start a home business. Id. (internal quotations omitted). Ultimately, the Court concluded that Worldcom presented no evidence that employment comparable to her position at Worldcom was in fact available and, therefore, ruled that substantial evidence supported the trial court’s finding that Worldcom did not prove that Henningsen failed to mitigate her back pay damages. Id. (internal quotations omitted).

Thus, in the case of Henningsen v. Woldcom, the issue of mitigation of damages was determined in favor of the employee as a result of the employer’s failure to satisfy the first element of the test—evidence that there were openings in comparable positions available for plaintiff elsewhere after defendant terminated (or refused to hire) plaintiff.


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Monday, September 24, 2018

Cat's Paw Theory Applies In WA State

by Gregory Williams, Esq. | Under the various employment discrimination theories of liability in Washington state, what is the “Cat’s Paw” Theory? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

CAT’S PAW THEORY

The Cat’s Paw Theory of liability is a another term for subordinate bias liability and can be defined in Washington State as follows: If a supervisor performs an act motivated by retaliatory animus that is intended by the supervisor to cause an adverse employment action, and if that act is relied on by the employer and is a substantial factor in the ultimate employment action, then the employer is liable for retaliation. See Boyd v. State, 187 Wn.App. 1, 20, 349 P.3d 864 (Div. 2 2015).

ORIGINS

According to the Cat’s Paw Theory, "the animus of a non-decision-maker who has a singular influence may be imputed to the decision-maker." Id. at fn.1 (referencing, Staub v. Proctor Hosp., 562 U.S. 411, 131 S. Ct. 1186, 179 L. Ed. 2d 144 ( 2011)).
The term “cat’s paw” originated in the fable, “The Monkey and the Cat,” by Jean de La Fontaine. As told in the fable, the monkey wanted some chestnuts that were roasting in a fire. Unwilling to burn himself in the fire, the monkey convinced the cat to retrieve the chestnuts for him. As the cat carefully scooped the chestnuts from the fire with his paw, the monkey gobbled them up. By the time the serving wench caught the two thieves, no chestnuts were left for the unhappy cat.
Id. (citing, Julie M. Covel, The Supreme Court Writes A Fractured Fable of the Cat’s Paw Theory in Staub v. Proctor Hospital [ Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011)], 51 Washburn L.J. 159 ( 2011)). "In the workplace, the cat represents an unbiased decision-maker who disciplines an employee unknowingly due to a supervisor’s bias, represented by the monkey." Id. (citing, Edward Phillips, The Law at Work: Staub v. Proctor Hospital: The Cat’s Paw Theory Gets Its Claws Sharpened, 47 Tenn. B.J. June, 2011, at 21).

INDEPENDENT INVESTIGATIONS

Oftentimes, the employer-defendant under a Cat’s Paw theory of liability will claim that it conducted an “independent investigation” and found an unrelated basis for the adverse employment actions upon which the plaintiff-employee seeks recourse. In such a case, employers will typically argue that the so-called independent investigation was a supervening cause of any retaliatory animus. Nevertheless, the employer may not necessarily be relieved of liability.

If the independent investigation "relies on facts provided by the biased supervisor—as is necessary in any case of cat’s-paw liability—then the employer (either directly or through the ultimate decision maker) will have effectively delegated the factfinding portion of the investigation to the biased supervisor." Boyd, 187 Wn.App. at 18. Accordingly, the plaintiff may have a firm basis to argue that a causal connection exists, depending on the evidence. See, e.g., id.


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

–gw

Saturday, September 1, 2018

Pretext: Scrivener Corrects the Fulton Error

by Gregory Williams, Esq. | Under both Washington Law Against Discrimination (WLAD) and the McDonnell Douglas Framework, can a failure-to-promote plaintiff prove that discrimination was a substantial factor motivating the employer, even though the employer’s stated reason is legitimate? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

Proving Discrimination In Washington


-Substantial Factor-

Under the WLAD–and with few exceptions–it is an unfair practice for any employer to refuse to hire any person because of age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, unless based upon a bona fide occupational qualification.

At trial, the WLAD plaintiff must ultimately prove that the protected class was a substantial factor in an employer’s adverse employment action. See Scrivener v. Clark College, 181 Wn.2d 439, 444, 334 P.3d 541 (Wash. 2014) (internal citation and quotation marks omitted).

A “substantial factor” means that the protected characteristic was a significant motivating factor bringing about the employer’s decision. Id. (internal citation and quotation marks omitted). It does not mean that the protected characteristic was the sole factor in the decision. Id. (internal citation and quotation marks omitted).

-Proof By Circumstantial Evidence-

To overcome summary judgment, a plaintiff needs to show only that a reasonable jury could find that the plaintiff’s protected trait was a substantial factor motivating the employer’s adverse actions. Scrivener v. Clark College, 181 Wn.2d 439, 445, 334 P.3d 541 (Wash. 2014) (internal citation omitted). This is a burden of production, not persuasion, and may be proved through direct or circumstantial evidenceId. (internal citation omitted) (emphasis added).

Where a plaintiff lacks direct evidence, Washington courts use the burden shifting analysis articulated in McDonnell Douglas, 411 U.S. 792, to determine the proper order and nature of proof for summary judgment. Id. (internal citations omitted) ( emphasis added).

Thus, at summary judgment, Washington State courts typically apply the McDonnell Douglas Framework to decide employment discrimination issues where plaintiffs offer proof by circumstantial evidence.

The McDonnell Douglas Framework


The McDonnell Douglas Framework is a three pronged test; and in Scrivener the Washington State Supreme Court defined the test as follows:

Under the first prong of the McDonnell Douglas framework, a plaintiff bears the initial burden of establishing a prima facie case of discrimination, which creates a presumption of discrimination. (citations omitted). Once the plaintiff establishes a prima facie case, [under the second prong] the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. (citations omitted).

If the Defendant meets this burden, the third prong of the McDonnell Douglas test requires the Plaintiff to produce sufficient evidence that Defendant’s alleged nondiscriminatory reason for [the employment action] was a pretext. (citations omitted). Evidence is sufficient to overcome summary judgment if it creates a genuine issue of material fact that the employer’s articulated reason was a pretext for a discriminatory purpose. (citations omitted).

If the plaintiff satisfies the McDonnell Douglas burden of production requirements, the case proceeds to trial, unless the judge determines that no rational fact finder could conclude that the action was discriminatory. (citations omitted).

Scrivener v. Clark College, 181 Wn.2d 439, 446, 334 P.3d 541 (Wash. 2014) (internal citations and quotation marks omitted).

At this point, I’ve gone over enough information to warrant revisiting the main issue of this article: under both Washington Law Against Discrimination (WLAD) and the McDonnell Douglas Framework, can a failure-to-promote plaintiff circumstantially prove that discrimination was a substantial factor motivating the employer, even though the employer’s stated reason is legitimate?  The answer lies in the proper definition and application of the third prong of McDonnell Douglas — pretext.

The Fulton Error


The definition of “pretext” under McDonnell Douglas has contracted and expanded over the last two decades as a result of the “Fulton Error.”  In 2014, the Washington State Supreme Court, in Scrivener v. Clark College, essentially described the Fulton Error as follows:
  1.  In 1995, the Court of Appeals in Kuyper v. Dep’t of Wildlife, 79 Wn.App. 732, 738-39, 904 P.2d 793 (1995), listed the following four factors as examples of how to prove the defendant’s articulated reasons were pretextual:  (1) the reason has no basis in fact, (2) it was not really a motivating factor for the decision, (3) it lacks a temporal connection to the decision, or (4) was not a motivating factor in employment decisions for other employees in the same circumstances.
  2. In 2000, the Court of Appeals in Fulton v. Dep’t of Soc. & Health Servs., 169 Wn.App. 137, 161, 279 P.3d 500 (2012), repeated these four factors, omitting that they were only examples – thus creating the “Fulton Error.”
  3. In 2013, the Court of Appeals in Scrivener v. Clark Coll., 176 Wn.App. 405, 309 P.3d 613 (2013), review granted, 179 Wn.2d 1009, 316 P.3d 495 (2014), repeated the Fulton Error, overlooking that a plaintiff may also establish pretext by proving that discrimination was a substantially motivating factor in the employment decision.
Eventually, the Washington State Supreme Court decided it was time to address the Fulton Error.

The Pretext Prong


In 2014, the Washington State Supreme Court elected to review the 2013 Scrivener decision and found that an employee may satisfy the pretext prong by offering sufficient evidence to create a genuine issue of material fact either (1) that the defendant’s reason is pretextual or (2) that although the employer’s stated reason is legitimate, discrimination nevertheless was a substantial factor motivating the employer. Scrivener v. Clark College, 181 Wn.2d 439, 446-47, 334 P.3d 541 (Wash. 2014). Moreover, the court found that an employee does not need to disprove each of the employer’s articulated reasons to satisfy the pretext burden of production.  Id. at 447 (internal citation omitted). The court went on to say,

[O]ur case law clearly establishes that it is the plaintiff’s burden at trial to prove that discrimination was a substantial factor in an adverse employment action, not the only motivating factor. (internal citation omitted). An employer may be motivated by multiple purposes, both legitimate and illegitimate, when making employment decisions and still be liable under the WLAD. 

Id. at 447(internal citations omitted).

The Scrivener Correction


The court then squarely addressed the Fulton Error and ruled, “A plaintiff may satisfy the pretext prong using one of the four factors listed by the Court of Appeals, but the plaintiff may also satisfy the pretext prong by presenting sufficient evidence that discrimination nevertheless was a substantial factor motivating the employer.” Id. at 448 (emphasis added).


Conclusion


Thus, I believe that under both Washington Law Against Discrimination (WLAD) and the McDonnell Douglas Framework, a failure-to-promote plaintiff can prove that discrimination was a substantial factor motivating the employer, even though the employer’s stated reason is legitimate.


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

–gw

Monday, August 20, 2018

Statute of Limitations: Hostile Work Environment & The Morgan Analysis

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), how is the statute of limitations calculated for hostile work environment claims? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).


WASHINGTON LAW AGAINST DISCRIMINATION

Under WLAD, it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age (40+); sex (including pregnancy); marital statussexual orientation (including gender identity); race; color; creednational originhonorably discharged veteran or military statusHIV/AIDS and hepatitis C status; the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability; and state employee or health care whistleblower status. It is also an unfair practice for an employer to retaliate against an employee because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit.


STATUTE OF LIMITATIONS: THE MORGAN ANALYSIS

A statute of limitations is a law that bars claims after a specified period; a statute establishing a time limit for suing in a civil case. Black's Law Dictionary 1450-51 (8th ed.2004). Typically, "[d]iscrimination claims must be brought within three years under the general three-year statute of limitations for personal injury actions." Antonius v. King County, 153 Wn.2d 256, 261-62, 103 P.3d (2004) (citing RCW 4.16.080(2)). However, the statute of limitations for a hostile work environment claim is calculated using the Morgan Analysis, because the objectionable practice does not necessarily occur on a particular day.

Under the Morgan Analysis:
[W]here a discrete act of discrimination is alleged, the limitations period runs from the act. Antonius, 153 Wash.2d at 264, 103 P.3d 729. But for a hostile work environment claim, the objectionable practice does not occur on a particular day. Id. Thus, conduct throughout the time the acts occurred could be considered if the plaintiff presented evidence that one or more acts took place within three years of when the claim was filed. Id. Accordingly, " [u]nder Morgan, a ‘ court's task is to determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so, whether any act falls within the statutory time period.’ " Id. at 271, 103 P.3d 729 (quoting Morgan, 536 U.S. at 120, 122 S.Ct. 2061). " The acts must have some relationship to each other to constitute part of the same hostile work environment claim." Id. If no relationship exists, " or if ‘ for some other reason, such as certain intervening action by the employer’ the act is ‘ no longer part of the same hostile environment claim, then the employee cannot recover for the previous acts' as part of one hostile work environment claim." Id. (quoting Morgan, 536 U.S. at 118, 122 S.Ct. 2061).
Cox v. Oasis Physical Therapy, PLLC, 153 Wn.App. 176, 195-96, 222 P.3d 119, (Div. 3 2009) (hyperlinks added).


CONCLUSION

The statute of limitations for a hostile work environment claim under WLAD is typically three years. However, when the court addresses an actionable hostile work environment practice, it may consider acts occurring outside of the three-year statute of limitations period if the plaintiff shows that one or more acts that are part of that same actionable hostile work environment practice happened within three years of when the underlying claim was filed.


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Tuesday, August 14, 2018

McDonnell Douglas Framework (Step 1): The Prima Facie Case

by Gregory Williams, Esq. | Under the McDonnell Douglas Framework, (Framework), as applied by Washington State courts, how does a plaintiff establish step 1 -- the prima facie caseHere's my point of view (NOTE: please read our DISCLAIMER before proceeding).
(To learn about the entire Framework and how it is applied, read our recent article entitled: The McDonnell Douglas Burden-Shifting Framework)

THE MCDONNELL DOUGLAS FRAMEWORK

The McDonnell Douglas burden-shifting framework has three steps:
STEP 1The "plaintiff bears the initial burden of establishing a prima facie case of discrimination, which creates a presumption of discrimination." Scrivener v. Clark College, 181 Wn.2d 439, 446, 334 P.3d 541, (2014) (citing, Riehl, 152 Wn.2d at 149-50; Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26, 865 P.2d 507 (1993)) (internal citations and quotation marks omitted) (emphasis and hyperlink added).
STEP 2"[T]he burden shifts to the defendant, who must articulate a legitimate, nondiscriminatory reason for the adverse employment action." Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 527 (Wash. 2017) (internal citations and quotation marks omitted) (emphasis and hyperlink added).
STEP 3"[I]f the defendant meets this burden, the plaintiff must produce sufficient evidence showing that the defendant's alleged nondiscriminatory reason for the adverse employment action was a pretext." Id. (internal citations omitted) (emphasis and hyperlink added). 

A CLOSER LOOK: STEP 1 -- THE PRIMA FACIE CASE

The term "prima facie" means "at first sight; on first appearance but subject to further evidence or information." Black's Law Dictionary 1228 (8th ed. 2004). And a "prima facie case" means: "1. The establishment of a legally required rebuttable presumption ... [; or] 2. A party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor." Id. 

In Washington State, legal theories under the Washington Law Against Discrimination (proven via circumstantial evidence) have unique and separate formulations for the prima facie case. For example, here are prima facie case requirements for two common legal theories, inter alia:

1. HOSTILE WORK ENVIRONMENT (HARASSMENT): to establish a prima facie case of hostile work environment, the plaintiff must show: (1) that the harassment was unwelcome; (2) that the harassment was based on membership in a protected class; (3) that the harassment affected the terms and conditions of employment; and (4) that the harassment can be imputed to the employer. Glasgow v. Georgia-Pacific Corporation, 103 Wn.2d 401, 406-07, 693 P.2d 708 (Wash. 1985). Take our Hostile Work Environment Video Test:

2. UNLAWFUL RETALIATION: to establish a prima facie case of unlawful retaliation, the plaintiff must show (1) that the he/she engaged in a protected activity (e.g., complaining to the employer about job discrimination based on a protected class, participating in an investigation to determine whether discrimination occurred, etc.); (2) that the plaintiff experienced an adverse employment action; and (3) that there is a causal link between the activity and the adverse action. Alonso v. Qwest Communications Company, 178 Wn.App. 734, 753-54, 315 P.3d 610 (Wash.App.Div. 2 2013) (citing, Short v. Battle Ground Sch. Dist., 169 Wn.App. 188, 279 P.3d 902 (Div. 2 2012), overruled on other grounds by Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 325 P.3d 193 (Wash. 2014)). Take our Unlawful Retaliation Video Test:


Additional legal theories under the Washington Law Against Discrimination include, but are not limited to, the following: disparate treatment, disparate impact, failure to provide reasonable accommodations, etc. Again, each theory has its own requirements for a prima facie case. Moreover, some elements of the prima facie case may contain additional requirements.


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.