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Sunday, July 29, 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.

Saturday, July 28, 2018

Remedies For Breach of Conciliation Agreements

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) regulations, what are the remedies for breach of conciliation agreements? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

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; 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.

WASHINGTON STATE HUMAN RIGHTS COMMISSION

The WSHRC was established by the Washington State Legislature in 1949, and it "is a state agency responsible for administering and enforcing the Washington Law Against Discrimination." WSHRC Official Website, last accessed 4/18/18. One of its powers, inter alia, is the ability "to receive, impartially investigate, and pass upon complaints alleging unfair practices as defined in ... [the WLAD]." RCW 49.60.120(4).

"If the facts as stated in the complaint do not constitute an unfair practice under ... [WLAD], a finding of no reasonable cause may be made without further investigation." RCW 49.60.240(1)(a). However, "[i]f the facts as stated could constitute an unfair practice under ... [WLAD], a full investigation and ascertainment of the facts shall be conducted." Id. And "[i]f the finding is made that there is reasonable cause for believing that an unfair practice has been or is being committed, the commission's staff shall immediately endeavor to eliminate the unfair practice by conference, conciliation, and persuasion." RCW 49.60.240(3) (emphasis added). Within the employment context, "the task of the commission [in effectuating conciliation] is to endeavor to eliminate the unfair practice through agreement with the respondent." Such agreements are termed "conciliation agreements."

REMEDIES FOR BREACH OF CONCILIATION AGREEMENTS

Occasionally, respondent's fail to honor the terms of WSHRC conciliation agreements. In that case, "[i]f an agreement and order for the elimination of an unfair practice made under RCW 49.60.240 is breached, the executive director may take action appropriate in the circumstances, including one or more of the following:"
(1) Specific enforcement. Bringing an action in superior or district court for specific enforcement of the agreement, or for damages pursuant to the conciliation agreement;
(2) Setting aside. Recommending to the commissioners that the agreement and order be set aside, in whole or in part, and that the case be returned to the staff for renewed conference, conciliation and persuasion, or to be referred to commission counsel for hearing; or
(3) Report to prosecuting attorney. Reporting the violation to the appropriate prosecuting attorney for prosecution under RCW 49.60.310.
WAC 162-08-109 (emphasis added).


LEARN MORE

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

Wednesday, July 18, 2018

6 Reasons Employment Discrimination Lawsuits Fail

by Gregory Williams, Esq. | The following is a list of six typical reasons that employment discrimination claims fail in Washington based upon my experience practicing employment discrimination law in Washington State. The list is not exclusive, not scientifically prioritized, and is general in nature; I have drawn from both Washington State and Federal law. This article is solely offered as my point of view (NOTE:  please read our DISCLAIMER before proceeding).

And now, the countdown…

#6 -- THE DISCRIMINATING MANAGER HIRED YOU

The “Same-Actor-Inference” is a potential employer defense to a claim of employment discrimination. It’s applicable where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time; in that case, a strong inference arises that there was no discriminatory action. However, there is a bright note; in Washington, the Supreme Court has declined to adopt the Same-Actor-Inference with respect to unlawful retaliation claims.

#5 -- YOU WERE NOT PERFORMING SATISFACTORILY

Under the Washington Law Against Discrimination, disparate treatment discrimination is intentional discrimination, and it’s the most easily understood type discrimination. A substantial number of disparate treatment discrimination cases are based upon wrongful termination.  Under this basis, a common method to prove discrimination is for the plaintiff to show that he/she is a member of a protected class, had satisfactory job performance, was discharged from employment, and was replaced by someone outside the protected class. However, oftentimes plaintiffs in employment discrimination lawsuits are not performing satisfactorily at the time of termination, and, thus, their disparate treatment claims may fail.

There is good news; disparate treatment discrimination based on wrongful termination is only one of a variety of potential theories of discrimination that might be claimed depending on the facts of each case. In addition, there are several approaches to making a case, and I have only addressed one based upon what is commonly known as the McDonnell-Douglas Formulation. Consult with an attorney to learn more (see #1 below).

#4 -- IMPROPERLY BASED DISCRIMINATION

Under Washington Law Against Discrimination, language and/or conduct at work may be considered unlawful only when it’s because of a protected class.  Protected classes include race or color; national origin; creed; sex or pregnancy; sexual orientation or gender identity; veteran or military status; presence of any sensory, mental, or physical actual disability or perceived disability; use of a service animal; HIV or hepatitis C; marital status; and age.

The problem generally occurs when an employee complains of discrimination to their employer but fails to indicate that the discrimination occurred on account of their protected class. This may destroy a hostile work environment claim which requires, inter alia, that the harassing language or conduct occur because of the plaintiff’s protected class.

#3 -- YOU CAN’T HOLD THE EMPLOYER RESPONSIBLE

To hold an employer responsible for hostile work environment discrimination under Washington Law Against Discrimination, an employee must, inter alia, impute conduct to the employer. Where an owner, manager, partner, or corporate officer personally participates in the discriminatory conduct, employer liability is imputed automatically. However, if the harassment is by a supervisor, co-workers or others, then the employer is liable only if it authorized, knew or should have known of the harassment and failed to take reasonably prompt and adequate corrective action.

The lesson here is that reporting discrimination to the employer immediately after it occurs sets the foundation for employer liability; but remember #4 above — a properly drafted discrimination complaint should indicate, among other things, that the discrimination occurred on account of the employee’s protected class.

#2 -- YOU NEVER COMPLAINED

In number #4 above, the discrimination complaint was not properly drafted. However, under this category, the complaint was never filed.

A common claim associated with employment discrimination is unlawful retaliation. One way to form this claim is through a burden shifting framework which initially requires the plaintiff-employee to establish a prima facie case. A plaintiff-employee may typically establish a prima facie case of unlawful retaliation by producing evidence of (1) a protected activity by the employee, (2) an adverse action by the employer, and (3) the employer’s knowledge of the protected activity.  The third element further requires the plaintiff-employee to show that the protected activity was a substantial factor for the adverse employer action.

One common type of protected activity that creates a partial basis for an unlawful retaliation claim is opposing practices forbidden by the Washington Law Against Discrimination. However, if an employee experiencing discrimination never complains to the employer, then the employee may not have effectively opposed discrimination under these circumstances (the employer may also claim that it lacks knowledge of the employee’s protected activity); and the claim of unlawful retaliation may fail.

#1 -- YOU DIDN’T CONSULT WITH AN ATTORNEY ASAP

Timelines are critical in employment discrimination cases. An employee should consider consulting with an attorney at the first instance of discriminatory language or conduct at work; and develop a proper plan of action to guard against future discrimination.

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, July 17, 2018

Disparate Treatment Via Hostile Work Environment

by Gregory Williams, Esq. | Under the Washington State direct evidence approach, may an employee-plaintiff build a prima facie case of disparate treatment based on a hostile work environment? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding). 

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; 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.

Disparate Treatment


Disparate treatment is a form of employment discrimination, and it occurs when an employer treats some people less favorably than others based on protected class. Accordingly, to establish a prima facie disparate treatment discrimination case, a plaintiff must show that his employer simply treats some people less favorably than others because of their protected status. Alonso v. Qwest Commc’ns Co., LLC, 178 Wn.App. 734, 743, 315 P.3d 610 (Wash.App. Div. 2 2013) (citing Johnson v. Dep’t of Soc. & Health Servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)). A plaintiff may establish a prima facie case by either offering direct evidence of an employer’s discriminatory intent, or by satisfying the McDonnell Douglas burden-shifting test that gives rise to an inference of discrimination. Id. at 743-44 (citing Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1993)).

Direct Evidence Test


The plaintiff can establish a prima facie case under the direct evidence test by offering direct evidence of the following:
  1. The defendant employer acted with a discriminatory motive; and
  2. The discriminatory motivation was a significant or substantial factor in an employment decision.
Id. at 744 (citing Kastanis, 122 Wn.2d at 491) (hyperlink added).

Significant/Substantial Factor


The 2nd second element–discriminatory motivation was a significant or substantial factor in an employment decision–is at issue here. Stated differently, the plaintiff must establish that the discriminatory motive–the 1st element–was a significant or substantial factor in the subject employment decision. Obviously, employee-plaintiffs will be claiming that the subject employment decision was adverse to their interests.

However, an adverse employment action involves a change in employment conditions that is more than an inconvenience or alteration of one’s job responsibilities, such as reducing an employee’s workload and pay. Id. at 748 (citing Campbell v. State, 129 Wn.App. 10, 22, 118 P.3d 888 (2005), review denied, 157 Wn.2d 1002 (2006)). And a demotion or adverse transfer, or a hostile work environment, may amount to an adverse employment action. Id. at 746 (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 465, 98 P.3d 827 (2004), review denied, 154 Wn.2d 1007 (2005)) (emphasis added).

Conclusion


An employee-plaintiff might be able to build a prima facie case of disparate treatment based on a hostile work environment. However, the prima facie case will be incomplete unless the employee-plaintiff is also able to establish the 1st element of the direct evidence test; this article only addresses the 2nd element.   

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.