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Wednesday, January 3, 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

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