Translate

Call Us Today! (253) 396-9000
(You'll always speak directly with Attorney Williams)

Wednesday, February 28, 2018

Renewing Letters of Guardianship for 5 Years: WA State

by Gregory Williams, Esq. | Under Washington State law, is it possible to renew Letters of Guardianship for 5 years? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).

LETTERS OF GUARDIANSHIP

Typically, in the State of Washington, Letters of Guardianship are renewed for a period of 12, 24, or 36 months. However, the law allows courts to order the clerk to issue Letters of Guardianship that are valid for a period of up to five years from the anniversary date of the appointment. See RCW 11.88.127(2)

COURT CONSIDERATIONS

When determining the time period for which the letters will be valid, the court is required to consider the following:
  1. The length of time the guardian has been serving the incapacitated person; 
  2. whether the guardian has timely filed all required reports with the court; 
  3. whether the guardian is monitored by other state or local agencies; and 
  4. whether there have been any allegations of abuse, neglect, or a breach of fiduciary duty against the guardian.
Id. (emphasis added).

CONCLUSION

In Washington State, one may request the court to renew Letters of Guardianship for up to 60 months (5 years), and the likelihood of success will be based in part upon the court’s discretion and ones ability to establish a combination of the four considerations above to the court’s satisfaction. I have successfully acquired 5-year terms on behalf of former clients.


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.

WLAD: Definition of Creed

by Gregory Williams, Esq. | What is the definition of the term “Creed” under the Washington Law Against Discrimination (WLAD)? 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 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.

DEFINITION OF CREED

In 2014, the Washington State Supreme Court defined the term "creed" as follows:
Washington courts have long equated the term "creed" in the WLAD with the term "religion" in Title VII of the Civil Rights Act of 1964 (Title VII).
Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 489, 325 P.3d 193 (2014).


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.

Unlawful Employer Communications & Preemployment Activities

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination, what are some types of unlawful employer communications and preemployment activies? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

AN UNFAIR PRACTICE -- SECTION 180(4)

Pursuant to section 180(4) of the Washington Law Against Discrimination, it’s an unfair practice for any employer "to print, or circulate, or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which expresses any limitation, specification, or discrimination as to 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, or any intent to make any such limitation, specification, or discrimination, unless based upon a bona fide occupational qualification: PROVIDED, advertising in a foreign language is not prohibited." RCW 49.60.180 (internal hyperlinks and emphasis added). This is not an exhaustive recitation of the law on this subject. See Chapter 49.60 RCW.

REMEDIES FOR THE UNFAIR PRACTICE

Typically, any person deeming himself or herself injured by their employer, as strictly defined by RCW 49.60.040(11), as a result of its commission of this unfair practice is entitled to "a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by Washington Law Against Discrimination or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.)." See RCW 49.60.030(2).


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, February 27, 2018

Disparate Treatment: Proving Pretext By Comparison


by Gregory Williams, Esq. | Under the McDonnell Douglas Burden-Shifting Scheme (hereinafter, “McDonnell Douglas“), may a WA State disparate treatment plaintiff establish pretext by comparisonHere’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

MCDONNELL DOUGLAS BURDEN SHIFTING SCHEME

In the summary judgment context, to succeed on a claim of disparate treatment using McDonnell Douglas, the plaintiff must first establish a prima facie case of discrimination. See Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007). If the plaintiff states a prima facie case, the burden shifts to the defendant-employer to articulate a legitimate, non-discriminatory reason for the challenged action. Chuang v. Univ. of Cal. Davis, Bd. Of Trs., 225 F.3d 1115, 1123-24 (9th Cir. 2000) (quotation marks omitted). If the employer meets this burden, the plaintiff must then show a triable issue of material fact as to whether the defendant’s stated reason is mere pretext for unlawful discrimination. Hawn v. Exec. Jet Mgmt, Inc., 615 F.3d 1151, 1155 (9th Cir. 2010) (quotation marks omitted) (emphasis added). This last requirement is know as the prextext prong.

THE PRETEXT PRONG

Generally, to prove pretext under McDonnell Douglas, a plaintiff must show that the defendant’s articulated reasons (1) had no basis in fact, (2) were not really motivating factors for its decision, (3) were not temporally connected to the adverse employment action, or (4) were not motivating factors in employment decisions for other employees in the same circumstances. Id. (internal citation omitted) (emphasis added). The fourth element allows a plaintiff to prove pretext by using comparison.

PROVING PRETEXT BY COMPARISON

Accordingly, to prove pretext by comparison in Washington State, a plaintiff must show that (1) an employee outside the protected class (2) committed acts of comparable seriousness (3) but was not demoted or similarly disciplined. Johnson v. Department of Social & Health Services, 907 P.2d 1223, 80 Wn.App. 212, 227 (Wash.App. Div. 2 1996) (referencing Hiatt v. Rockwell Int’l Corp., 26 F.3d 761, 770 (7th Cir.1994)). And, arguably, acts of comparable seriousness need not be violations of identical company disciplinary rules. See, e.g., Hiatt v. Rockwell Intern. Corp., 26 F.3d 761, 770 (7th Cir. 1994) (Court previously held that "acts of comparable seriousness need not be violations of identical company disciplinary rules") (internal citation omitted). Plaintiffs are free to compare similar conduct, focusing more on the nature of the misconduct rather than on specific company rules. Id. (internal citation omitted).

OCCASIONAL LENIENCY NOT ENOUGH

However, plaintiffs may need to demonstrate more than occasional leniency toward other employees who had engaged in conduct of a similar nature. See id. at 771 (internal citation and quotation marks omitted). Ultimately, "incomplete or arbitrary comparisons reveal nothing concerning discrimination." Id. (internal citations 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.

Saturday, February 24, 2018

Res Judicata, Claim Splitting, and Independent Statutory Rights

by Gregory Williams, Esq. | Under Washington State law, does claim splitting apply to Washington Law Against Discrimination (WLAD) claims and Title VII of the Civil Rights Act of 1964 (Title VII) claims when they are pursued contemporaneously in separate causes of action? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding). 

RES JUDICATA & INDEPENDENT CAUSES OF ACTION

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). The Washington State Supreme Court addressed the issue of res judicata and independent causes of action in Seattle-First Nat. Bank v. Kawachi when it held as follows:

[W]hile it is often said that a judgment is res judicata of every matter which could and should have been litigated in the action, this statement must not be understood to mean that a plaintiff must join every cause of action which is joinable when he brings a suit against a given defendant. CR 18(a) permits joinder of claims. It does not require such joinder.  And the rule is universal that a judgment upon one cause of action does not bar suit upon another cause which is independent of the cause which was adjudicated.

Seattle-First Nat. Bank v. Kawachi, 91 Wash. 2d 223, 588 P.2d 725 (1978) (citing 50 C.J.S. Judgments §668 (1947) (emphasis added); 46 Am.Jur.2d Judgments §404 (1969). Thus, it appears that if WLAD and Title VII claims are independent causes of action, then res judicata may be inapplicable when these claims are pursued contemporaneously in separate causes of action.

WLAD CLAIMS ARE INDEPENDENT

WLAD Claims are independent statutory rights. The Washington State Supreme Court has held that WLAD confers on individual employees an independent statutory right. See, Reese v. Sears, Roebuck & Co., 107 Wn.2d 563, 577, 731 P.2d 497 (Wash. 1987) (holding that the comprehensive statutory scheme contained in RCW 49.60 evidences the Legislature’s intent to allow individual employees to pursue their statutory rights independently), overruled on other grounds by Phillips v. City of Seattle, 111 Wash.2d 903 766 P.2d 1099 (Wash. 1989)) (emphasis added); see also, Morales v. Westinghouse Hanford Co., 73 Wn.App. 367, 372, 869 P.2d 120 (Div. 3 1994) (holding that the Washington Legislature has emphasized the independent nature of the remedy provided by the Washington Law Against Discrimination) (emphasis added).  

The court in Reese v. Sears, Roebuck & Co. went on to hold that the “statutory scheme designed by the Legislature in RCW 49.60 confers on individual employees a substantive right to be free from unlawful employment discrimination and provides a personal cause of action to vindicate that right.” Id. (referencing RCW 49.60.030, .180, .230) (emphasis added).

TITLE VII CLAIMS ARE INDEPENDENT

Title VII claims are also independent statutory rights. The Washington State Supreme Court has held that in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by the U.S. Congress that are distinctly separate in nature from other rights and which are not vitiated merely because they are violated with another right as a result of the same factual occurrence. Civil Service Com’n of City of Kelso v. City of Kelso, 137 Wn.2d 166, 175, 969 P.2d 474 (1999) (emphasis added).  

Moreover, the United States Supreme Court has echoed this sentiment. In Civil Service Com’n of City of Kelso v. City of Kelso, the court held that a statutory claim brought under Title VII is an independent cause of action when it does not turn on the meaning of any provision in the other claim, even though the two claims involve the same factual considerations. Id. at 175-76 (citing Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 409-10, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988)) (emphasis added). In Morales v. Westinghouse Hanford Co., the court held that Title VII statutory rights are legally independent rights. See Morales v. Westinghouse Hanford Co., 73 Wn.App. at 372 (citing International Union of Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 236, 97 S.Ct. 441, 446, 50 L.Ed.2d 427 (1976)) (emphasis added). And in Alexander v. Gardner-Denver Co., the court held that the legislative history of Title VII statutory rights manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII (Civil Rights Act of 1964) and other applicable state and federal statutes. Alexander v. Gardner-Denver Co., 94 S.Ct. 1011, 1019, 415 U.S. 36 (1974).

CONCLUSION

I believe that, depending on the circumstances, claim splitting may not apply to WLAD claims and Title VII claims when they are pursued contemporaneously in separate causes of action.


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, February 19, 2018

WLAD: HIV or Hepatitis C Infections

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), what are unfair practices with respect to HIV or hepatitis C infections? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

WASHINGTON LAW AGAINST DISCRIMIANTION

According to 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; creed; national 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.

DEFINITION OF “HIV” AND “HEPATITIS C”

HIV” means the human immunodeficiency virus, and includes all HIV and HIV-related viruses which damage the cellular branch of the human immune system and leave the infected person immunodeficient; and “Hepatitis” means the hepatitis C virus of any genotype. Section 49.60.174(3)(a)-(b) RCW (verify the current text of the law by visiting the Washington Courts Website).

EVALUATION OF CLAIM OF DISCRIMINATION

For the purposes of determining whether an unfair practice under Chapter 49.60 RCW has occurred, claims of discrimination based on actual or perceived HIV or hepatitis C infection shall be evaluated in the same manner as other claims of discrimination based on sensory, mental, or physical disability; or the use of a trained dog guide or service animal by a disabled person. Section 49.60.174(1) RCW.

However, subsection 49.60.174(1) RCW (immediately above) shall not apply to transactions with insurance entities, health service contractors, or health maintenance organizations subject to RCW 49.60.030(1)(e) or 49.60.178 to prohibit fair discrimination on the basis of actual HIV or actual hepatitis C infection status when bona fide statistical differences in risk or exposure have been substantiated. Section 49.60.174(2) RCW.

UNFAIR PRACTICES

As of the date of this article, the following are unfair practices with respect to HIV or hepatitis C infection (verify the current text of the law by visiting the Washington Courts Website):
1.  HIRING, PROMOTION, OR CONTINUED EMPLOYMENT
No person may require an individual to take an HIV test, as defined in chapter 70.24 RCW, or hepatitis C test, as a condition of hiring, promotion, or continued employment unless the absence of HIV or hepatitis C infection is a bona fide occupational qualification for the job in question. Section 49.60.172(1) RCW. 
2.  DISCHARGE, FAIL/REFUSE TO HIRE, SEGREGATE, OR CLASSIFY
No person may discharge or fail or refuse to hire any individual, or segregate or classify any individual in any way which would deprive or tend to deprive that individual of employment opportunities or adversely affect his or her status as an employee, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment on the basis of the results of an HIV test or hepatitis C test unless the absence of HIV or hepatitis C infection is a bona fide occupational qualification of the job in question. Section 49.60.172(2) RCW.
3.  BONA FIDE OCCUPATIONAL QUALIFICATION 
The absence of HIV or hepatitis C infection as a bona fide occupational qualification exists when performance of a particular job can be shown to present a significant risk, as defined by the board of health by rule, of transmitting HIV or hepatitis C infection to other persons, and there exists no means of eliminating the risk by restructuring the job. Section 49.60.172(3) RCW.
4.  BENEFITS UNDER AFFIRMATIVE ACTION PROVISIONS OF CHAPTER 49.74 RCW
For the purpose of chapter 49.60 RCW, any person who is actually infected with HIV or hepatitis C, but is not disabled as a result of the infection, shall not be eligible for any benefits under the affirmative action provisions of chapter 49.74 RCW solely on the basis of such infection. Section 49.60.172(4) RCW.
5.  EMPLOYER IMMUNITY FROM CIVIL ACTION
Employers are immune from civil action for damages arising out of transmission of HIV or hepatitis C to employees or to members of the public unless such transmission occurs as a result of the employer’s gross negligence. Section 49.60.172(5) RCW.
RCW 49.60.172(1)-(5).


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.

Section 1981 & Would-Be Contractors

by Gregory Williams, Esq. | Are would-be contractors protected under Section 1981? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).

SECTION 1981

Section 1981 prohibits racial discrimination in the making and enforcement of contracts. See 42 U.S.C. § 1981. A plaintiff cannot state a claim under Section 1981 unless the plaintiff has (or would have) rights under the existing (or proposed) contract that he wishes ‘to make and enforce.’” See Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 479-80 (2006).

THE WOULD-BE CONTRACTOR

However, a contractual relationship need not already exist, because Section 1981 protects the would-be contractor along with those who already have made contracts. See Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006). According to the court in Domino's Pizza, Inc.:
We made this clear in Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), which subjected defendants to liability under §1981 when, for racially-motivated reasons, they prevented individuals who 'sought to enter into contractual relationships' from doing so, id., at 172, 96 S.Ct. 2586 (emphasis added). We have never retreated from what should be obvious from reading the text of the statute: Section 1981 offers relief when racial discrimination blocks the creation of a contractual relationship, as well as when racial discrimination impairs an existing contractual relationship, so long as the plaintiff has or would have rights under the existing or proposed contractual relationship.
Domino’s Pizza, Inc. v. McDonald546 U.S. at 476 (emphasis added).

CONCLUSION

I believe that would-be contractors may be protected under Section 1981 as long as the plaintiff has or would have rights under the existing or proposed contractual relationship.

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, February 13, 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.

Sunday, February 4, 2018

Washington Law Against Discrimination & Res Judicata

by Gregory Williams, Esq. | Does the Washington Law Against Discrimination exempt the application of res judicata? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

RES JUDICATA

Under Washington State law, res judicata, or claim preclusion, prohibits the relitigation of claims and issues that were litigated or could have been litigated in a prior action. Eugster v. The Washington State Bar Association, 198 Wn.App. 758, 786, 397 P.3d 131, (Div. 3 2017) (citing Loveridge v. Fred Meyer, Inc., 125 Wn.2d 759, 763, 887 P.2d 898 (1995); Pederson v. Potter, 103 Wn.App. 62, 67, 11 P.3d 833 (2000)). The doctrine curtails multiplicity of actions and harassment in the courts. Id. (citing Bordeaux v. Ingersoll Rand Co., 71 Wn.2d 392, 395, 429 P.2d 207 (1967)). The broad general rule of res judicata suggests that a party is always prohibited from litigating a claim or issue that could have been raised in any earlier suit. Id.

STATUTORY EXEMPTION OF RES JUDICATA

However, a statute may expressly memorialize the application of the doctrine of res judicata, and, arguably, it may expressly exempt the application.  See, e.g., State, Dept. of Ecology v. Acquavella, 112 Wn.App. 729, 739, 51 P.3d 800 (Wash.App. Div. 3 2002) (finding that RCW 90.03.220 memorializes by statute the application of the doctrine of res judicata to water adjudications).  How does this hypothesis apply to the Washington Law Against Discrimination (WLAD), Chapter 49.60 RCW?  

PLAIN LANGUAGE OF WLAD

The plain language of WLAD appears to show that the legislature intended to expressly exempt the application of res judicata to WLAD:

The provisions of this chapter [RCW 49.60] shall be construed liberally for the accomplishment of the purposes thereof … nor shall anything herein contained be construed to deny the right to any person to institute any action or pursue any civil or criminal remedy based upon an alleged violation of his or her civil rights…  

RCW 49.60.020 (emphasis added). Thus, arguably, it would be unlawful to construe any action, based on an alleged violation of a plaintiff's civil rights, in such a manner as to be precluded by res judicata.

CONCLUSION

It appears that one may argue that WLAD exempts the application of res judicata.



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.

The WA and Federal Priority of Action Rules

by Gregory Williams, Esq. | Under both Washington State and federal laws, are there two separate Priority of Action Rules? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

WASHINGTON PRIORITY OF ACTION RULE

The Washington Priority of Action Rule provides that the first court to obtain jurisdiction over a case possesses exclusive jurisdiction to the exclusion of other coordinate courts. American Mobile Homes of Wash., Inc. v. Seattle-First Nat’l Bank, 115 Wn.2d 307, 317, 796 P.2d 1276 (1990). Generally, the term “coordinate courts” as it applies to the Rule refers to courts in different counties within the Washington State court system. See id. at 323 (holding that the superior court may not consolidate cases pending in different counties in applying the Washington Priority of Action Rule). The courts have been clear on this point; for example, in Atlantic Casualty Ins. Co. v. Oregon Mut. Ins. Co., 137 Wn. App. 296, 304, 153 P.3d 211 (Wash.App. Div. 2 2007), the court held that the unseemly and expensive jurisdictional conflict that the Washington State Priority of Action Rule is designed to avoid is one superior court trying to correct another.    

FEDERAL PRIORITY OF ACTION RULE

This principle was further illuminated by the Washington State Supreme Court in Mobile Homes of Wash., Inc. v. Seattle-First Nat’l Bank, 115 Wn.2d at 317, when it held that the Federal courts have their own Priority of Action Rule applicable to coordinate courts within the Federal court systemMobile Homes of Wash., 115 Wn.2d at 317.

Thus, it is manifestly evident that there is a distinct Federal Priority of Action Rule and a distinct Washington Priority of Action Rule that do not apply between the two court systems, and both the Federal Circuit Courts and Supreme Court have echoed this principle.

THE FEDERAL CIRCUIT COURTS

Undeniably, “[t]he rule is well recognized that the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction." Ryan v. Johnson, 115 F.3d 193, 195 (3rd Cir. 1997). The general rule regarding simultaneous litigation of similar issues in both state and federal courts is that both actions may proceed until one has come to judgment, at which point that judgment may create a res judicata or collateral estoppel effect on the other action. University of Maryland v. Peat Marwick Main & Co., 923, F.2d 265, 275-76 (3rd Cir. 1991)  (citing McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 504-505, 54 L.Ed. 762 (1910); Stanton v. Embrey, 93 U.S. 548, 554, 23 L.Ed. 983 (1877)) (quotation marks omitted) (emphasis added).

Particularly, the 9th Circuit has held that “[t]he rule that permits simultaneous litigation in state and federal court of overlapping and even identical cases is deeply rooted in our system.” Noel v. Hall, 341 F.3d 1148, 1159 (9th Cir. 2003). Parallel state and federal litigation is inherent in our legal system, and the possibility of duplicative litigation is a price of federalism. Id. (citation omitted).  Moreover, the U.S. Supreme court has recognized that the rule can produce inefficient simultaneous litigation in state and federal courts on the same issue, but the court has held that this is one of the costs of our dual court system. Id. (citing Parsons Steel, Inc. v. First Ala. Bank, 474 U.S. 518, 524-25, 106 S.Ct. 768, 88 L.Ed.2d 877 (1986); Doran v. Salem Inn, Inc., 422 U.S. 922, 928, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975).

The 9th Circuit in Noel v. Hall, supra, further explained, "The inefficiencies produced by the rule permitting simultaneous litigation in state and federal court are mitigated by a number of abstention doctrines [i.e., Younger abstention, Pullman abstention, Burford abstention, and Colorado River abstention] that permit, and often require, a federal court to abstain in favor of state court litigation.” Id. at 1159-60. “In addition, a federal court may stay its proceedings based on comity even when none of the absention doctrines requires that it do so.” Id. (citing  Deakins v. Monaghan, 484 U.S. 193, 202-03, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988).

THE U.S. SUPREME COURT

Poignantly, the U.S. Supreme Court held in Atlantic Coast Line Railroad v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 295, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970),

[T]he state and federal courts had concurrent jurisdiction in this case, and neither court was free to prevent either party from simultaneously pursuing claims in both courts.  (emphasis added).

Noel v. Hall, 341 F.3d at 1159 (internal citation omitted).

CONCLUSION

There is a Washington State and federal Priority of Action Rule. The Washington Priority of Action Rule only applies to coordinate courts within the Washington State court system; and neither rule applies between coordinate courts of the Federal court system and the Washington State court system.  


LEARN MORE

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

WA State District Courts, Multiple Defendants & Jurisdictional Caps

by Gregory Williams, Esq. | As of the date of this article, the jurisdictional cap for actions filed in WA State District Courts is $100,000 (see RCW 3.66.020 for current law/dollar amounts); but what is the jurisdictional cap if one filed a lawsuit involving multiple defendants in a district court? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

CHAPTER 3.66.020 RCW

The relevant statute is Chapter 3.66.020 RCW, which–as of the date of this article–states as follows:

If, for each claimant, the value of the claim or the amount at issue does not exceed one hundred thousand dollars, exclusive of interest, costs, and attorneys' fees, the district court shall have jurisdiction and cognizance of the following civil actions and proceedings: 
(1) Actions arising on contract for the recovery of money; 
(2) Actions for damages for injuries to the person, or for taking or detaining personal property, or for injuring personal property, or for an injury to real property when no issue raised by the answer involves the plaintiff's title to or possession of the same and actions to recover the possession of personal property; 
(3) Actions for a penalty; 
(4) Actions upon a bond conditioned for the payment of money, when the amount claimed does not exceed fifty thousand dollars, though the penalty of the bond exceeds that sum, the judgment to be given for the sum actually due, not exceeding the amount claimed in the complaint; 
(5) Actions on an undertaking or surety bond taken by the court; 
(6) Actions for damages for fraud in the sale, purchase, or exchange of personal property; 
(7) Proceedings to take and enter judgment on confession of a defendant; 
(8) Proceedings to issue writs of attachment, garnishment and replevin upon goods, chattels, moneys, and effects; 
(9) Actions arising under the provisions of chapter 19.190 RCW; 
(10) Proceedings to civilly enforce any money judgment entered in any municipal court or municipal department of a district court organized under the laws of this state; and 

(11) All other actions and proceedings of which jurisdiction is specially conferred by statute, when the title to, or right of possession of, real property is not involved.

Id. (NOTE: Statutory dollar figures are always subject to change; visit the Washington State Legislature Website for current dollar figures) (emphasis added).

THE LAW APPLIED TO MULTIPLE DEFENDANTS

It is unclear whether the jurisdictional cap under RCW 3.66.020–in the case of a lawsuit in district court against multiple defendants–applies either to the action as a whole or separately as to each group of claims against each individual defendant. However, in 1986, Division 2 of the Washington State Court of Appeals addressed a similar issue in Rasmussen v. Chase, 720 P.2d 860, 44 Wn.App. 71 (Div. 2 1986), thereby creating what I call the “Chase Rule”; and to this day, over 30 years later, no court has overruled the decision. See id.

RASMUSSEN v. CHASE: LAWSUITS & CAUSES OF ACTION

In Rasmussen v. Chase, the Chases leased property from Rasmussen in 1980 agreeing to make monthly payments of $2,250. Id. Thereafter, the Chases failed to make lease payments from August 1982 through January 1983. Id. Accordingly, Rasmussen filed three separately ongoing lawsuits in Pierce County District Court against the Chases for rent due: the first lawsuit claimed rent due for August and September, 1982; the second lawsuit claimed rent due for October and November, 1982; and the third lawsuit claimed rent due for December, 1982 and January, 1983. Id. All three cases were subsequently consolidated with a combined prayer over the jurisdictional cap for Pierce County District Court. Id. Thus, the court was presented with a single lawsuit containing multiple causes of action–each for rent past due for a unique timeframe–against the same defendants: the Chases.

The Chases then argued that the single lawsuit contained a prayer amount which was beyond the court’s jurisdiction and that the court was thereupon divested of jurisdiction. However, on review, the Chase Court held as follows:

In our view [RCW 3.66.020] confers—and limits—jurisdiction over causes of action and not over lawsuits to the extent that the latter are merely vehicles for the former…We conclude that consolidation is proper if the causes of action consolidated, considered separately, are within the District Court’s jurisdictional limits… [The district court’s jurisdiction] depend[s] upon the amount in controversy in a given cause of action.

Rasmussen v. Chase, 44 Wn.App. at 73-74 (hyperlink added to original) (emphasis added). The Court of Appeals then applied the Chase Rule and held that the first lawsuit was based on one cause of action and within the jurisdictional limit; while the second and third lawsuits should be combined as one cause of action, again within the jurisdictional limit – and jurisdiction was proper even though both causes of action together in one lawsuit were well beyond the jurisdictional limit. See Id.

THE CHASE RULE

Under Rasmussen v. Chase, the statutory cap for WA District Courts applies to causes of action and not individual defendants. Thus, if a plaintiff pursues multiple causes of action against each of multiple defendants within a single lawsuit, then, arguably, the plaintiff would be entitled to seek up to $100,000 for each cause of action against each defendant.

CONCLUSION

I would argue that according to the Chase Rule, WA State District Courts maintain jurisdiction over a single lawsuit involving multiple defendants in which the combined "value of the claim or amount at issue" is above the current statutory cap of $100,000, as long as each cause of action against each individual defendant is below the statutory cap — $100,000 as of the date of this article. Again, keep in mind that statutory dollar figures are always subject to change; visit the Washington State Legislature Website for current dollar figures. See RCW 3.66.020.


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.