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Saturday, December 23, 2017

WLAD: Age Limitation

by Gregory Williams, Esq. | Under Washington Law Against Discrimination (WLAD), what is the age limitation for aggrieved plaintiffs? 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 status; sexual orientation (including gender identity); race; color; creed; national origin; honorably 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.

FORTY YEARS OF AGE OR OLDER

Pursuant to WLAD, it is unlawful to discriminate based on age, but one must be within the proper age group to claim age discrimination. Generally, Washington’s prohibition against age discrimination is contained in RCW §49.60.205; and that section essentially refers the reader to RCW §49.44.090.  Under this section, it’s an actionable unfair practice for an employer or licensing agency (and, in some circumstances, employment agencies) to unlawfully discriminate (see RCW §49.44.090 for exceptions) against an individual because he/she is forty years of age or older. Thus, it appears that one must be at at least forty years old to claim age discrimination in WA under the WLAD.  


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

Friday, December 22, 2017

Imputing Income: Unemployment & Underemployment

by Gregory Williams, Esq. | Under Washington family law, when may a court impute income to a parent? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

VOLUNTARILY UNEMPLOYED / UNDEREMPLOYED

Washington State child support laws establish both how to determine whether to impute income for a parent and its proper calculation. Generally, the court shall impute income to a parent when the parent is voluntarily unemployed or voluntarily underemployed. RCW 26.19.071(6). Accordingly, the court determines whether the parent is voluntarily underemployed or voluntarily unemployed based upon that parent’s work history, education, health, and age, or any other relevant factors. Id. In the absence of records of a parent’s actual earnings, the court shall impute a parent’s income in the following order of priority:

(a) Full-time earnings at the current rate of pay;

(b) Full-time earnings at the historical rate of pay based on reliable information, such as employment security department data;

(c) Full-time earnings at a past rate of pay where information is incomplete or sporadic;

(d) Full-time earnings at a minimum wage in the jurisdiction where the parent resides if the parent has a recent history of minimum wage earnings, is recently coming off public assistance, aged, blind, or disabled assistance benefits, pregnant women assistance benefits, essential needs and housing support, supplemental security income, or disability, has recently been released from incarceration, or is a high school student;

(e) Median net monthly income of year-round full-time workers as derived from the United States bureau of census, current population reports, or such replacement as published by the bureau of census.

Id.  

THE EXCEPTIONS

However, there are exceptions.  Generally, a court will not impute income to a parent who is gainfully employed on a full-time basis, unless the court finds that the parent is voluntarily underemployed and finds that the parent is purposely underemployed to reduce the parent’s child support obligation. Id. In addition, income is generally not imputed for an unemployable parent. Id. Lastly, income is usually not imputed to a parent to the extent the parent is unemployed or significantly underemployed due to the parent’s efforts to comply with court-ordered reunification efforts under Chapter 13.34 RCW or under a voluntary placement agreement with an agency supervising the child. Id.


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Family Law 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

Thursday, December 21, 2017

WLAD: Changes In Work Schedule & Unlawful Retaliation

by Gregory Williams, Esq. | Under Washington Law Against Discrimination (WLAD), may changes in an employee’s work schedule can be considered an adverse employment action for purposes of an unlawful retaliation claim? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

The Washington State Supreme Court, in majority, has not clearly defined the term “adverse employment action.” However, Federal law and the United States Supreme Court offer some useful guidance on the issue of whether changes to an employee’s work schedule constitute an adverse employment action under WLAD.

The term “adverse employment action” is not defined in Title VII of the Civil Rights Act of 1964; accordingly, the federal courts have devoted attention to this issue, but they have not reached a consensus.  See Islamic Society of Fire Department Personnel v. City of New York, 205, F.Supp.2d 75, 82 (E.D.N.Y. 2002).  Some courts, such as the Fifth and Eighth Circuits, have held that an “adverse employment action” relates only to “ultimate employment actions,” such as hiring, firing, promotions and demotions. Id. (internal citation and quotation marks omitted). However, the Ninth Circuit (which includes Washington state) has adopted the EEOC’s broad definition of an adverse employment action which takes an “expansive view” of what may be considered an adverse employment action. Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000).

Specifically, the Ninth Circuit has held that changes in work schedules is reasonably likely to deter employees from engaging in protected activity and is thus an adverse employment actionId. The basis for this holding was validated by U.S. Supreme Court in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405 (2006) (holding that an adverse employment action must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of unlawful conduct by the employer).

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

Unlawful Retaliation Test

by Gregory Williams, Esq. | Unlawful retaliation is a form of unlawful employment discrimination in Washington. Take our Unlawful Retaliation Test:




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

Wednesday, December 20, 2017

Claim Splitting In Washington

by Gregory Williams, Esq. | What is claim splitting and how is it applied in Washington State? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

RES JUDICATA

The theory of claim splitting is “variously referred to as res judicata or splitting causes of action.” Landry v. Luscher, 95 Wn.App. 779, 783, 976 P.2d 1274 (1999); Sound Build Homes, Inc. v. Windermere Real Estate/ South, Inc., 118 Wn.App. 617, 628, 72 P.3d 788 (Wash.App. Div. 2 2003); Schoeman v. New York Life Ins. Co., 106 Wn.2d 855, 859, 726 P.2d 1 (1986). Res judicata prevents relitigation of claims already decided. Haberman v. Washington Public Power Supply System, 109 Wn.2d 107, 121-22, 744 P.2d 1032 (Wash. 1987) (citing Meder v. CCME Corp.,7 Wash.App. 801, 803, 502 P.2d 1252 (1972)) (emphasis added). While res judicata bars relitigation of claims necessarily a part of a previous matter in controversy, it poses no bar to claims not in fact adjudicated previously. Id. at 122 (citing Seattle-First Nat’l Bank v. Kawachi, 91 Wash.2d 223, 226, 588 P.2d 725 (1978)) (holding res judicata did not bar plaintiffs’ claims). Thus, “the threshold requirement of res judicata is a final judgment on the merits in the prior suit.” Hisle v. Todd Pacific Shipyards Corp., 151 Wn.2d 853, 865, 93 P.3d 108 (Wash. 2004).

THE RULE

The general rule for claim splitting is that “if an action is brought for part of a claim, a judgment obtained in the action precludes the plaintiff from bringing a second action for the residue of the claim.” Landry v. Luscher, 95 Wn.App. 779, 782, 976 P.2d 1274 (1999) (Plaintiffs prohibited from suing for personal injuries after obtaining judgment for property damage arising out of same accident) (emphasis added); see also, Nguyen v. Sacred Heart Medical Center, 97 Wn. App. 728, 987 P.2d 634 (1999) (Plaintiff prohibited from raising a new claim on appeal after summary judgment). Thus, res judicata will not apply until there has been a final judicial judgment. See, Phillip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60 Wash.L.Rev. 805, 807 (1985) (emphasis added).

TWO EXAMPLES

Here are two examples. First, in Landry v. Luscher, 95 Wn.App. 779, 976 P.2d 1274 (1999), the Plaintiffs were in an auto accident and first obtained a judgment for property damage against the defendant in small claims court. Id. Subsequently, the Plaintiffs sued the defendants in superior court for personal injuries arising out of the same accident, and the appellate court upheld the trial court’s dismissal based upon res judicata. Id. Second, in Nguyen v. Sacred Heart Medical Center, 97 Wn. App. 728, 987 P.2d 634 (1999), the trial court first entered summary judgment against the plaintiffs, and the appellate court refused to allow plaintiffs to bring a subsequent claim of outrage arising out of the same facts, holding, “Allowing a party to shift theories on appeal runs contrary to the purpose of summary judgment”. 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

Monday, December 18, 2017

WLAD: Definition of Dog Guide & Service Animal

by Gregory Williams, Esq. | What are the definitions of “Dog Guide” and “Service Animal” under Washington State Discrimination Law? 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 status; sexual orientation (including gender identity); race; color; creed; national origin; honorably 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.

DEFINITIONS OF DOG GUIDE & SERVICE ANIMAL

The definitions of “Dog Guide” and “Service Animal” are found under chapter 49.60.040(8), (24) RCW, respectively, and are as follows:
(8) “DOG GUIDE” means a dog that is trained for the purpose of guiding blind persons or a dog that is trained for the purpose of assisting hearing impaired persons. 
(24) “SERVICE ANIMAL” means an animal that is trained for the purpose of assisting or accommodating a sensory, mental, or physical disability of a person with a disability.
***CHANGE TO "SERVICE ANIMAL": EFFECTIVE 1/1/19***
(24) “SERVICE ANIMAL” means any dog or miniature 18 horse, as discussed in section 4 of this act, that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The work or tasks performed by the service animal must be directly related to the individual's disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing nonviolent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks. This subsection does not apply to RCW 49.60.222 through 49.60.227 with respect to housing accommodations or real estate transactions.
 Id. (hyperlinks added to original); see 2822-S.SL.


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, December 16, 2017

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

Tuesday, December 12, 2017

The WA Doctrine of Judicial Estoppel

by Gregory Williams, Esq. | Under Washington law, what is the doctrine of judicial estoppel and how is it applied? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE POLICY

Courts apply the equitable doctrine of judicial estoppel to protect the integrity of the judicial process by precluding a party from gaining an advantage by asserting one position in a court proceeding and later seeking an advantage by taking a clearly inconsistent position. Urbick v. Spencer Law Firm, LLC, 192 Wn.App. 483, 367 P.3d 1103 (Div. 1 2016) (internal citation and quotation marks omitted).

THE 3 FUNDAMENTAL FACTORS

The Washington State Supreme Court set forth three fundamental factors to guide a court's application of judicial estoppel as follows:
  1. Whether a party's later position is clearly inconsistent with its earlier position;
  2. Whether judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled; and
  3. Whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.
Id. (internal citation and quotation marks omitted).

SUMMARY JUDGMENT

On summary judgment, a party can ask the trial court to bar claims based on an inconsistent position taken in an earlier proceeding under the doctrine of judicial estoppel. Id. (internal citation and quotation marks omitted). To defeat summary judgment, the nonmoving party must present evidence raising an issue of fact about one of the factors guiding a court's application of judicial estoppel or show that the trial court abused its discretion when applying the doctrine. Id. (internal citation and quotation marks omitted).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State 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.

Saturday, December 9, 2017

Equal Protection Clause & The Class-Of-One Claim

by Gregory Williams, Esq. | Under federal law, what is a "Class-of-One" racial discrimination claim? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

SECTION 1983

Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred. Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 811 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 2694, n. 3 (1979)) (internal quotation marks omitted). Section 1983 and other federal civil rights statutes address liability in favor of persons who are deprived of rights, privileges, or immunities secured to them by the Constitution. Carey v. Piphus, 435 U.S. 247, 253, 98 S.Ct. 1042 (1978) (quoting Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 996 (1976)) (internal quotation marks omitted). The first inquiry in any Section 1983 suit, therefore, is whether the plaintiff has been deprived of a right secured by the Constitution and laws. Baker, 443 U.S. at 140, 99 S.Ct. 2689 (1979) (internal quotation marks omitted).


CLASS-OF-ONE CLAIM



The Equal Protection Clause of the Fourteenth Amendment (hereinafter, "Equal Protection Clause") is a right secured by the Constitution. The central purpose of the Equal Protection Clause is the prevention of official conduct discriminating on the basis of race.  When an equal protection claim is premised on unique treatment rather than on a classification, the Supreme Court has described it as a "class of one" claim. North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (citing Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam)).



THE ELEMENTS



Generally, to make a Class-Of-One Equal Protection Claim, a plaintiff must establish that defendants: (1) intentionally treated him (2) differently than other similarly situated individuals (3) without a rational basis. Gearhart v. Lake Cnty., Mont., 637 F.3d 1013, 1022 (9th Cir. 2011); Reiber v. City of Pullman, 918 F.Supp.2d 1091, 1105 (E.D. Wash. 2013).



L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced Washington State 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, December 7, 2017

The Safety Camera Infraction Presumption: WA State

by Gregory Williams, Esq. | If you’re the unlucky recipient of safety camera infraction in the state of Washington, and you’re the registered owner of the vehicle that was ticketed, then you may face a fundamental presumption (hereinafter, “Safety Camera Infraction Presumption”) — that you are the person operating the vehicle when the violation occurred. Specifically,

In a traffic infraction case involving an infraction detected through the use of an automated traffic safety camera under RCW 46.63.170 or detected through the use of an automated school bus safety camera under RCW 46.63.180, proof that the particular vehicle described in the notice of traffic infraction was in violation of any such provision of RCW 46.63.170 and 46.63.180, together with proof that the person named in the notice of traffic infraction was at the time of the violation the registered owner of the vehicle, constitutes in evidence a prima facie presumption that the registered owner of the vehicle was the person in control of the vehicle at the point where, and for the time during which, the violation occurred.

RCW 46.63.075(1). Fortunately, however, this presumption can be overcome. Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

As the registered owner, an individual may overcome the Safety Camera Infraction Presumption by stating under oath in a written statement to the court or in testimony before the court that the vehicle involved was, at the time, stolen or in the care, custody, or control of some person other than the registered owner. RCW 46.63.075(2). Obviously, you want to tell the truth throughout the process.

LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State 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

Employer Liability for Unpaid Contract Wages: WA State

by Gregory Williams, Esq. | Under Washington State law, may an employer pay an employee a lower wage than such employer is obligated to pay such employee by contract? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE BLACK LETTER LAW

The applicable law is under both RCW 49.52.050 and .070 — Rebates of wages and Civil liability for double damages, respectively. The relevant portions of RCW 49.52.050 state as follows:
Any employer or officer, vice principal or agent of any employer, whether said employer be in private business or an elected public official, who
(2) Willfully and with intent to deprive the employee of any part of his or her wages, shall pay any employee a lower wage than the wage such employer is obliagted to pay such employee by any statute, ordinance, or contract
Shall be guilty of a misdemeanor
RCW 49.52.050 (emphasis added). The relevant portions of RCW 49.52.070 state as follows:
Any employer and any officer, vice principal or agent of any employer who shall violate any of the provisions of RCW 49.52.050(1) and (2) shall be liable in a civil action by the aggrieved employee or his or her assignee to judgment for twice the amount of the wages unlawfully rebated or withheld by way of exemplary damages, together with costs of suit and a reasonable sum for attorney’s fees: PROVIDED, HOWEVER, That the benefits of this section shall not be available to any employee who has knowingly submitted to such violations.
RCW 49.52.070 (emphasis added).

THE CASE LAW

But what does this all mean? In this case, the relevant subsection is RCW 49.52.050(2). And the court in Clipse v. Commercial Driver Services, Inc., 189 Wn.App. 776, 358 P.3d 464 (Wash.App. Div. 2 2015) found that RCW 49.52.050(2) prohibits an employer from paying an employee a lower wage than the wage such employer is obligated to pay such employee by any statute, ordinance, or contract. (internal citation and quotation marks omitted) (emphasis added). This court went on to reason that RCW 49.52.070 creates civil liability, including double damages, costs, and attorney fees, for violations of RCW 49.52.050. Id.

CONCLUSION

Thus, depending on the circumstances of each case, an employer that willfully pays a lower wage than it’s obligated to pay under contract is taking a substantial risk; and, with few exceptions, may be found liable for double damages, costs, and attorney fees.

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

Wednesday, December 6, 2017

Sole Corporate Shareholder Plaintiff & Section 1981

by Gregory Williams, Esq. | Under Section 1981, may a plaintiff bring a claim of discrimination as the sole corporate shareholder that is authorized to make and enforce contracts for the shareholder’s corporation as its agent? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

SECTION 1981

A plaintiff cannot state a Section 1981 claim unless he has (or would have) rights under the existing (or proposed) contract that he wishes to make and enforce.  Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006) (internal quotation marks omitted).  The statute, originally enacted as §1 of the Civil Rights Act of 1866, now protects the equal right of all persons to make and enforce contracts without respect to race--§1981(a)--and defines “make and enforce contracts” to include “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits ... of the contractual relationship,” §1981(b)See id. (internal quotation marks omitted) (emphasis added).

Importantly, this cannot be read to give a sole corporate shareholder a cause of action because he “made and enforced contracts” for his corporation as its agent. See id.  The right to “make contracts” protected by the 1866 legislation was not the insignificant right to act as an agent for someone else’s contracting, but was rather the right, denied in some States to blacks, to give and receive contractual rights on one’s own behalf.  Id.  Any §1981 claim, therefore, must initially identify an impaired “contractual relationship,” §1981(b), under which the plaintiff has rights.

DOMINO'S PIZZA, INC. v. MCDONALD

However, the court in Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, n. 3, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006), alluded to a potential exception, but elected not to decide it; because the plaintiff made no such claim.  Particularly, the court stated, “[W]e do not mean to exclude the possibility that a third-party intended beneficiary of a contract may have rights under §1981.” Id. (referencing 2 Restatement (Second) of Contracts §304, p. 448 (1979) (“A promise in a contract creates a duty in the promisor to any intended beneficiary to perform the promise, and the intended beneficiary may enforce the duty”)). “Neither do we mean to affirm that possibility.” Id. (referencing Blessing v. Freestone, 520 U.S. 329, 349, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) (SCALIA, J., concurring) (“Until relatively recent times, the third-party beneficiary was generally regarded as a stranger to the contract, and could not sue upon it”)).

CONCLUSION

Thus, in my opinion it appears that a sole corporate shareholder plaintiff will probably not be able to pursue a cause of action under Section 1981 simply because the shareholder “made and enforced contracts” for her corporation, as its agent, that establish the basis for claims of discrimination. However, if the sole corporate shareholder is able to argue that the plaintiff-corporation was a third-party intended beneficiary under the subject contract(s), then the shareholder-plaintiff might be able to pursue a viable Section 1981 claim.

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

Appearance, Default, & Judgment In WA State

by Gregory Williams, Esq. | Under Washington law, what are the default and judgment notice requirements when the responding party's appearance is in dispute? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

POLICY: DEFAULT JUDGMENTS

In the State of Washington, default judgments are supported by the policy that an orderly system of justice requires compliance with judicial process and finality to judicial proceedings.  Ellison v. Process Systems inc. Const. Co., 112 Wash. App. 636, 50 P.3d 658 (Div. 3 2002) (quoting Griggs v. Averbeck Reality, Inc., 92 Wash.2d 576, 581, 599 P.2d 1289 (1979)).   Moreover, the appellate courts have observed that “the need for a responsive and responsible legal system mandates that parties comply with a judicial summons” in upholding default orders and judgments.  Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 599 P.2d 1289 (1979); Norton v. Brown, 99 Wn.App. 118, 992 P.2d 1019 (1999).  As our Supreme Court has recently noted: “Litigation is inherently formal.  All parties are burdened by formal time limits and procedures.”  Rosander v. Nightrunners Transport, Ltd., 147 Wn.App. 392, 196 P.3d 711 (Div. II 2008) (court affirmed trial court’s denial of defendant’s motion to vacate default order and judgment).  Ultimately, the decision on a motion to vacate an order of default or a default judgment is within the sound discretion of the trial court.  Estate of Stevens, 94 Wn. App. 20, 971 P.2d 58 (Div. II 1999).

NOTICE REQUIREMENT

In light of the foregoing, the relevant notice requirement for default and judgment pursuant to Civil Rule 55(a)(3) is generally as follows:
… Any party who has not appeared before the motion for default and supporting affidavit are filed is not entitled to a notice of the motion…(emphasis added)
Civil Rule 55(a)(3).

APPEARANCE

Whether a party has ‘appeared’ ”is generally a question of intention, as evidenced by acts or conduct, such as the indication of a purpose to defend or a request for affirmative action from the court, constituting a submission to the court’s jurisdiction.” City of Des Moines v. $81,231, 87 Wn. App. 689, 696, 943 P.2d 669 (Div. I 1997)(emphasis added).  Keep in mind that CR 55 is intended to protect those parties who, although delaying in the formal sense by failing to file pleadings within the prescribed period, have otherwise indicated to the moving party a clear purpose to defend the lawsuitEllison, 112, Wash. App. 636, 642, 50 P.3d 658 (Div. 3 2002) (emphasis added) (quotations omitted).

SUBSTANTIAL COMPLIANCE DOCTRINE

As an aside, the Supreme Court narrowed the Substantial Compliance Doctrine in 2007 when it held that “[p]arties cannot substantially comply with the appearance rules through prelitigation contacts.  Parties must take some action acknowledging that the dispute is in court before they are entitled to a notice of default judgment hearing…”  Morin v. Burris, 160 Wn.2d 745, 161 P.3d 956 (2007).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State 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

Tuesday, December 5, 2017

Wrongful Termination: WA State

by Gregory Williams, Esq. | In the state of Washington, can an employee sue their employer for wrongful termination; even though Washington is an “at-will” employment state? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

Washington has been an “at-will” employment state since at least 1928.  See Ford v. Trendwest Resorts, Inc., 146 Wn.2d 146, 152, 43 P.3d 1223,  (Wash. 2002) (referencing Davidson v. Mackall-Paine Veneer Co., 149 Wash. 685, 688, 271 P. 878 (1928); see also Prescott v. Puget Sound Bridge & Dredging Co., 40 Wash. 354, 357, 82 P. 606 (1905) (Mount, C.J., dissenting) (“where [an employment] contract is general and for an indefinite time, it is terminable at will.”)).  According to this doctrine, an employer can discharge an at-will employee for no cause, good cause or even cause morally wrong without fear of liability.  See Id. (citing Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 226, 685 P.2d 1081 (1984)) (internal quotations omitted).  Conversely, an employee has the absolute right to quit his or her employment at-will.  See id. However, there are three recognized exceptions to the general at-will employment rule: (1) Statutory; (2) Judicial and; (3) Contractual.

(1)  STATUTORY EXCEPTIONS

First, both Congress and the Washington State Legislature have modified the employment at-will doctrine by limiting employers’ rights to discharge employees. Id. at 153 (referencing National Labor Relations Act, 29 U.S.C. § 158(a)(1) (1994); Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (1994); chapter 49.60 RCW (Washington’s law against discrimination); see also chapter 49.12 RCW (prohibiting discharge of employees for testifying in investigations regarding labor conditions, worker earnings, or sex discrimination); RCW 49.44.090 (prohibiting discharge of employee for being age 40 and over)). These statutory laws provide an exception to the at-will doctrine that protects the employee’s rights and limits the employer’s ability to discharge an employee at-will.

(2)  JUDICIAL EXCEPTIONS

Second, Washington courts have recognized a narrow public policy exception to an employer’s right to discharge an employee; this exception is commonly known as “wrongful termination in violation of public policy.” Id. (referencing Smith v. Bates Technical Coll., 139 Wash.2d 793, 991 P.2d 1135 (2000) (public policy exception to “for-cause” employees); Gardner v. Loomis Armored, Inc., 128 Wash.2d 931, 913 P.2d 377 (1996) (discharge of armored truck driver who abandoned post to prevent murder violated public policy)). Under this exception, an employer does not have the right to discharge an employee when the termination would frustrate a clear manifestation of public policy.  Id.  By recognizing this public policy exception, Washington State Supreme Court has expressed its unwillingness to shield an employer’s action which otherwise frustrates a clear manifestation of public policy.  See Id at 154.

(3)  CONTRACTUAL EXCEPTIONS

Third, employers and employees can contractually modify the at-will employment relationship, eschewing the common law rule in favor of negotiated rights and liabilities. Id. at 154 (internal citation omitted). An employer can bargain away its right to discharge an employee without cause by contracting not to do so. Id. The law governing this exception is not a species of the employment at-will doctrine; it is the law of contracts.  Id. Therefore, the law of contracts governs an injured party’s right to recover damages under this exception. Id. at 155Unlike a wrongful discharge, a breach of contract is neither immoral nor wrongful; it is simply a broken promise. 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

Suing Supervisors For Discrimination In Washington

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), can supervisors be individually liable for employment discrimination? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

WASHINGTON LAW AGAINST DISCRIMINATION

I believe that supervisors, along with their employers, can be held liable for their discriminatory acts. 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.

WLAD expressly mandates liberal construction of its provisions in order to accomplish the broad purposes of the law. Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349, 357, 20 P.3d 921 (2001) (citing RCW 49.60.020). Therefore, Washington State courts view with caution any construction that would narrow the coverage of the law. Id. (citing Marquis v. City of Spokane, 130 Wash.2d 97, 108, 922 P.2d 43 (1996)) (internal quotations omitted).

-BROWN v. SCOTT PAPER WORLDWIDE CO.

In Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349, 20 P.3d 921 (2001), the Washington State Supreme Court consolidated two separate conflicting appeals containing one common and one separate issue (this article will only address the common issue: whether a supervisor who discriminates against an employee can be held individually liable under Washington’s Law Against Discrimination, chapter 49.60 RCW?). Id. The first of the two consolidated appeals was Brown v. Scott Paper World Wide Company (hereinafter, “Scott Paper”) and the second was Raymond v. Pacific Chemical (hereinafter, “Raymond”). Id.

-SCOTT PAPER

In Scott Paper, a female paper mill employee was promoted to both the highest union position in the mill and the lead position on the paper machine. Id. at 354-55. However, she endured years of sexual harassment at work where she was shunned by coworkers, was the victim of pranks, and was referred to in derogatory, sexist terms such as “boobs” and “beaver” Brown. Id. (quotation marks omitted). Subsequently, her human resources manager temporarily disqualified her from advancement pursuant to questionable reasons, and this was the first time the company had disqualified anyone under similar circumstances. Id. Eventually, she was suspended for kicking a coworker, and the employer conditioned her return upon acknowledgement and development of a plan meeting certain criteria; but when her medical provider proposed a plan, the employer rejected it – however, she was eventually returned to her original position by arbitrator decision after she filed a grievance. Id. Nevertheless, the employee subsequently filed suit in superior court for sexual harassment and discrimination based on sex and disability; and she included the employer and six of its supervisors (Supervisors) as defendants.  However, upon the Supervisors’ motion the trial court dismissed the claims against them ruling that they were not “employers” under RCW 49.60; but the Court of Appeals reversed.

-RAYMOND

In Raymond, the employer both recalculated an employee’s compensation and reassigned the employee after he had worked for the employer as a sales representative for four years; the employee believed that this resulted in a substantial reduction in his pay.  Id. at 356. The employee further asserted that his supervisors picked on him in order to drive him out of the company when he subsequently returned to work from a vacation; and, although the employer supported its actions by citing the employee’s alleged performance/behavioral issues, it was a scheme to drive him out along with other older salespersons. Id. Thereafter, the employer terminated the 51 year old employee for insubordination and replaced him with a younger less experienced employee; and the employer either fired or encouraged three other mature workers to retire early. Id. The employee then sued the employer and several of his supervisors (Supervisors) based on age discrimination.  And similar to the case in Scott Paper, upon the Supervisors’ motion the trial court dismissed the claims against them. However, unlike the case in Scott Paper, the Court of Appeals affirmed Raymond.  Thus, there was a conflict between Court of Appeals panels on this issue.

WASHINGTON STATE SUPREME COURT

Accordingly, the Washington State Supreme Court in Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349, 20 P.3d 921 (2001), consolidated Raymond and Scott Paper and addressed the issue of whether supervisors can be individually liable for employment discrimination by, inter alia: (1) analyzing the plain language of the statute; (2) distinguishing the State and Federal definitions of “employer” under the respective discrimination laws; and (3) applying the legislative intent of RCW 49.60.220.

1.  Plain Language of The Statute

Washington State courts interpret chapter 49.60 RCW by first analyzing the plain language of the statute.  See Brown v. Scott Paper Worldwide Co., 143 at 357 (citing Martini v. Boeing Co., 137 Wash.2d 357, 365, 971 P.2d 45 (1999)).  In this case, the Supreme Court focused on the definition of the term “employer.” WLAD defines “employer” as “any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit.” Id. (citing RCW 49.60.040(3)) (NOTE: now RCW 49.60.040(11)).

However, according to the definition, the term “employer” can be interpreted as either of the following:
a.  Any person acting in the interest of an employer…
    [or]
b.  Any person…who employs eight or more persons…
Accordingly, employees suing supervisors under WLAD could argue interpretation “a” to hold them liable while supervisors could argue interpretation “b” to escape liability.

The Supreme Court then explained that although the Court of Appeals panels in Scott Paper and Raymond recognized that the statute’s grammatical structure was subject to different interpretations; they disagreed as to the correct reading. Id. at 357-58. Consequently, the Supreme Court found that RCW 49.60.040(3) (now RCW 49.60.040(11)), by its very terms, contemplates individual supervisor liability; and a supervisor acting in the interest of an employer who employs eight or more people can be held individually liable for his or her discriminatory acts. Id. at 358.

2.  State & Federal Statutes Define Employer Differently

Next, the Supreme Court in Brown firmly put an end to any attempts by supervisors/managers to argue that the narrower Federal definition of “employer” should also be used under the Washington Law Against Discrimination. The Court found significant grammatical and statutory construction differences to the extent that Federal case law was useless to its analysis.

Under Title VII of the Civil Rights Act of 1964, the definition of “employer”  is as follows:
“[E]mployer” means a person engaged in an industry affecting commerce who has fifteen or more employees … and any agent of such a person.”
Brown v. Scott Paper Worldwide Co., 143 at 358-59 (citing Civil Rights Act of 1964, 42 U.S.C. § 2000e(b)). Whereas the definition of “employer” under WLAD is as follows:
“Employer” includes any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit.
Chapter 49.60.040(3) RCW (now RCW 49.60.040(11)). Grammatically, the Court found that the two definitions were significantly different and the Federal definition was essentially unavailing. Id. at 359.

Moreover, the Court found substantial differences in statutory construction between the State and Federal definition – reasoning that RCW 49.60.040(3) (now RCW 49.60.040(11)) contains the word “includes,” which is a term of enlargement; while, in contrast, title VII uses the word “means,” which is a term of limitation.  Brown v. Scott Paper Worldwide Co., 143 at 358-59 (citing Queets Band of Indians v. State, 102 Wash.2d 1, 4, 682 P.2d 909 (1984) (citing 2A Norman J. Singer, Statutes and Statutory Construction § 47.07, at 82 (4th ed.1973))) (quotation marks omitted).

3.  Legislative Intent

Next, the Supreme Court in Brown considered the policy behind WLAD, and found that the legislative intent to hold supervisors individually liable for acts of employment discrimination is evidenced by chapter 49.60 RCW’s clear mandate to eliminate all forms of discrimination. Brown v. Scott Paper Worldwide Co., 143 at 359-60 (citing RCW 49.60.010) (quotation marks omitted).

In fact, the Supreme Court suggested that there are two policies for supervisor-manager liability under Washington Law Against Discrimination: (1) “Aiding and Abetting” under RCW 49.60.220; and (2) the Definition of “Employer” under what is now RCW 49.60.040(11).

Particularly, the Court found that the Legislature’s intent to hold supervisors personally liable is manifested in RCW 49.60.220; and the inclusion of this provision establishes that the Legislature intended to reach individual wrongdoers in the workplace, not just the employers themselves. Brown, 143 at 360 (quotation marks omitted). The relevant law states as follows:
Unfair practice to aid violation.
It is an unfair practice for any person to aid, abet, encourage, or incite the commission of any unfair practice, or to attempt to obstruct or prevent any other person from complying with the provisions of this chapter or any order issued thereunder.
RCW 49.60.220.

Moreover, the Supreme Court suggested the second policy for supervisor-manager liability under the WLAD definition of “employer” when it reasoned, in accord with the Court of Appeals panel in Brown, that “[I]t would be a strained construction to hold supervisors personally accountable for their acts when they aid another in discrimination but not accountable when their own actions are directly discriminatory.” Brown, 143 at 360-61 (internal citation omitted).


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